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OPINION BELOW
The United States District Court for the Southern District of New York granted

the Motion for Summary Judgment filed by Appellee Planet Earth News, Inc. The order

is included as Appendix A.

ISSUE PRESENTED

Under 42 U.S.C. 12111(9) (2012), is an employer who has a best-qualified

hiring policy required to reassign a disabled employee to a vacant position when the

statutory text uses the discretionary may and when forcing such reassignment would

contradict the legislature's intent that reasonable accommodations should be agreed upon

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by both parties?
STATUTES INVOLVED
The statute involved is the "reasonable accommodations may include" provision

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of the Americans with Disabilities Act, 42 U.S.C. 12111 (2012), and the findings and

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purpose section of the ADA, Id. at 12101. A copy of the reasonable accommodation

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section is included in Appendix B, and a copy of the relevant portions of the findings and

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purpose section is included in Appendix C.

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JURISDICTION

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The United States District Court for the Southern District of New York has

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federal-question jurisdiction to hear cases under 28 U.S.C. 1331 (2000) that arise under

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the ...laws... of the United States. Because it involves the ADA, a federal statute, the

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appellate court had jurisdiction in this case. Under 28 U.S.C. 1291 (2000), courts of

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appeal have jurisdiction to hear appeals from final orders of the district courts. Because

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the district court's order granting summary judgment below was final, this Court has

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jurisdiction to hear this appeal.

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STATEMENT OF THE CASE

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I. Procedural History

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On May 1, 2012, plaintiff William Burgundy filed a charge with the Equal

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Employment Opportunity Commission (EEOC), claiming that he had been discriminated

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against in violation of 42 U.S.C. 12112 of the Americans with Disabilities Act of 1990

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(ADA). (Compl. 1-4.) On March 13, 2013, Burgundy filed a complaint against

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defendant Planet Earth News, Inc. (PEN), demanding relief under 42 U.S.C. 12112.

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(Id. 21.) PEN filed its answer on April 1, 2013. (Answer.) PEN filed its motion for

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summary judgment on October 15, 2013. (Defs. Mot.). Burgundy filed his response on

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October 31, 2013. (Pl.s Resp.) The district court granted summary judgment for PEN.

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(Dist. Ct. Order, Dec. 20, 2013). On January 6, 2014, Burgundy filed a notice of appeal,

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seeking to have the district court order reversed. (Not. of Appeal.)

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II. Facts

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Burgundy was hired as Lead News Anchor at Planet Earth News, Inc. on May 5,

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2000. (Harken Aff. 3) On January 15, 2012, Burgundy took his son to Rockefeller

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Center to ice skate. (Pls Aff. 4.) Burgundy tripped on some ice while skating and

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performing a jazz flute solo of Aqualung. (Id. 4-5.) The accident caused his flute to

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pierce his trachea. (Id.) As a result of this injury, Burgundy developed aphonia,

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rendering him permanently unable to speak. (Id.) Unable to continue work as a news

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anchor, Burgundy met with PEN station manager Fred Harken to discuss reassignment to

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job that did not require speaking. (Id. 7.) Burgundy requested reassignment to the open
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Director of Social Media position, which would not require Burgundy to speak. (Harken

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Aff. 8.) The Director of Social Media would be the face of PEN on social media,

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including Twitter, Facebook, and online chatrooms. (Id. 4.) This position had two

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requirements: applicants had to have at least two years of news station experience and

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had to be able to build a rapport with viewers and use good judgment when working with

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social media. (Id. 5.)

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Burgundy barely met the minimum requirements for this job, due to his very

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limited experience with social media. (Pl.s Aff. 7.) Burgundy has only ever sent out 4

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tweets (which he mistakenly calls twits), and only has 57 likes on his Facebook page,

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despite being a well-known news anchor in the public eye. (Id.) In contrast, another

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applicant for the job, Christina Corningstone, was much more qualified, with two years of

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experience working as the Director of Social Media at WVN (a small news station in

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Albany, New York) and thousands of followers on Twitter. (Corningstone Aff. 3-5.)

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PEN has an Equal Employment Opportunity policy that states that only the most

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qualified candidates for each position are hired. (Harken Aff. 10.) Both Corningstone

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and Burgundy interviewed for the position in March 2012. (Id. 9.) Because of their

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best-qualified candidate policy, PEN reasonably hired the far more-qualified candidate,

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Corningstone. (Id.) This has proven to be a wise decision, since PENs social media

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presence has vastly increased, with 10,000 more followers on Twitter and more than

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5,000 likes on Facebook. (Corningstone Aff. 6.)

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SUMMARY OF THE ARGUMENT

The district court correctly found that reassignment to a vacant position was not
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mandatory under the Americans with Disabilities Act (ADA). When interpreting a

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statute, this Court must first look to the plain language of the text, and only consider

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legislative history if necessary. In the ADA, the term may is used to describe available

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choices, rather than the mandatory shall. Since reasonable accommodation may

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include reassignment, it should not be interpreted as a requirement. Additionally, the

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legislative history shows that Congress intended for employers and employees to engage

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in a dialogue to determine what accommodation is most reasonable for both of them,

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rather than requiring reassignment. Thus, this Court should affirm the district courts

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grant of summary judgment.

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STANDARD OF REVIEW

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The standard of review for cases of statutory interpretation is de novo. In re

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Barnet, 737 F.3d 238, 246 (2d Cir. 2013).

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ARGUMENT

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THE DISTRICT COURT CORRECTLY GRANTED SUMMARY

JUDGMENT BECAUSE REASSIGNMENT IS NOT MANDATORY
UNDER 42 U.S.C. 12111.

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The ADA requires employers to provide reasonable accommodations to

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employees that are disabled. 42 U.S.C. 12112 (2012). According to 42 U.S.C. 12111,

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reasonable accommodations may include, among other things, reassignment to a vacant

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position. 42 U.S.C. 12111 (2012). At issue is whether reassignment to a vacant

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position is mandatory. The Eighth Circuit holds that reassignment is merely one option

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for both sides to consider. Huber v. Wal-Mart Stores, Inc., 486 F.3d 480, 483 (8th Cir.

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2007). However, the Seventh, Tenth, and D.C. circuits hold that reassignment to a vacant
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position is mandatory. E.g., E.E.O.C. v. United Airlines, Inc., 693 F.3d 760, 765 (7th Cir.

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2012). The issue whether reassignment under the ADA is mandatory is one of first

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impression in the Second Circuit. The ADAs plain language and the legislative history

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show that, as a matter of law, reassignment to a vacant position under the ADA is not a

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mandatory accommodation.

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A.

The District Court Correctly Granted Summary Judgment Because A Plain

Language Reading Of The ADA Shows That May As Used In 42 U.S.C.
12111(9) Should Not Be Interpreted As Mandatory.

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When interpreting a statute, this Court must first look to the language used by

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Congress and assume that the legislative purpose is accurately expressed by the ordinary

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meaning of the words. U.S. v. Gray, 642 F.3d 371, 377 (2d Cir. 2011). Additionally,

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when reviewing a federal statute, this Court must look at the placement and purpose of

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those words in the statute. Id. at 375. When Congress uses one word in one part of the

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statute but uses another elsewhere, it is assumed that the difference was purposeful.

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Nwozuzu v. Holder, 726 F.3d 323, 327 (2d Cir. 2013). In statutory construction, may

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typically indicates discretion, particularly when used in a statute alongside shall, which

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indicates a requirement. Jama v. Immigration and Customs Enforcement, 125 U.S. 694,

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703 (2005).

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In 12111(9), the ADA states that reasonable accommodation may include...

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reassignment to a vacant position and other similar accommodations for individuals

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with disabilities, as well as other suggestions such as job restructuring or training

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materials. 42 U.S.C. 12111(9) (2012). Use of the word may here indicates that these

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are available choices, not requirements. If they were interpreted to be requirements, the

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employer would have to perform all of the accommodations an employee demanded,

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even if one or two would suffice. Also of note is the language and other similar

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accommodations, meaning that this list is open ended, and as such cannot indicate a

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series of mandatory steps that an employer must follow.

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Shall is Congresss word for indicating requirements, as shown elsewhere in the

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ADA, such as in 12132, which stated that ...no qualified individual with a disability

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shall, by reason of such disability... be denied the benefits of the services, programs, or

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activities of a public entity.... 42 U.S.C. 12132 (2012); Noland v. Wheatly, 835 F.

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Supp. 476, 484 (N.D.Ind. 1993) (holding that shall as used here is mandatory

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language). This section completely bars public entities from discriminating against the

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disabled, without giving them any choice. Shall as used here can only mean

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mandatory. In contrast, may is used elsewhere in the ADA to indicate choices rather

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than requirements. For example, 12205 uses may to grant district court justices the

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option of awarding attorney's fees in a civil suit brought under the statute. 42 U.S.C.

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12205 (2012); Molski v. MJ Cable, Inc., 481 F.3d 724, 730 (9th Cir. 2007) (holding that

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district court justices have a choice of whether to award attorneys fees in a civil suit

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under the ADA). This clearly shows that may is meant to be understood as indicating a

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choice, whereas shall should be understood as mandatory language in the ADA. As

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such, if Congress had wanted to require reassignment in 12111(9), it would have used

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shall, and the fact that it did not shows that it did not want reassignment to a vacant

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position to be mandatory.

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Circuits in favor of mandatory reassignment claim that if reassignment to a vacant

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position is seen as an option rather than a requirement, some of the statute's language

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would be redundant. Smith v. Midland Brake, Inc., 180 F.3d 1154, 1165 (10th Cir. 1999).
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These courts point out that when interpreting statutes, redundancy should be avoided, and

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every effort should be made to give all of the words meaning. Id. Text should not be

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read and interpreted in such a way as to make part of it redundant. Natl Assn of Home

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Builders v. Defenders of Wildlife, 551 US 644, 669 (2007).

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However, all of the text in 12111(9) can have independent meanings without

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redundancy. The listed accommodations serve as examples of the sort of

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accommodations that would be normally reasonable under the ADA, as hinted with the

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and other similar accommodations statement. Additionally, reassignment to a vacant

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position can be interpreted as preventing a complete bar on requesting reassignment as a

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reasonable accommodation. 42 U.S.C. 12111(9) (2012); Smith, 180 F.3d at 1184

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(Kelly, J., dissenting); Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1315 (D.C. Cir. 1998)

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(Silberman, J., dissenting). In other words, it reserves reassignment as an available

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accommodation, and prevents employers from dismissing it entirely. Additionally, the

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statute could be interpreted to put employers on notice that reassignment is a possibility if

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there are no other reasonable accommodations. Smith, 180 F.3d at 1184. For example,

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an employer would be unable to claim that reassignment was necessarily unreasonable in

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every situation, because the statute specifically includes it as an option. Thus,

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reassignment does not have to be construed as mandatory in order to avoid redundancy in

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the language. It is merely one option in an open-ended list.

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This interpretation is also consistent with the stated purpose of the ADA, which is

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to provide a clear and comprehensive national mandate for the elimination of

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discrimination against individuals with disabilities. 42 U.S.C. 12101(b)(1) (2012). As

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stated by the court in Huber, if may were construed to mean mandatory, it would
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change the ADA from a statute intended to provide equal opportunities and eliminate

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discrimination into an affirmative action statute that gives preference to a protected

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group. Huber, 486 F.3d at 484. If this Court chose to enforce mandatory reassignment

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rather than allowing reassignment to be one of many options available (as intended by the

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legislature), the court would be unnecessarily interfering with the decision-making

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process of private businesses. It would give courts the power to dictate who should be

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assigned where, and with what accommodation, rather than allowing businesses to decide

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what works best for them. This would be going against the courts reasoning in Wernick

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v. Federal Reserve Bank of New York, where the court refused to allow a disabled

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employee to get rid of her supervisor, since supervision was an essential function of the

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job. 91 F.3d 379, 384 (2d Cir. 1996). Although Wernick did not deal with mandatory

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reassignment directly, it does show that in the past the Second Circuit has been hesitant to

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interfere with personnel decisions of private businesses. Similarly, this Court should

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leave personnel decisions to businesses and treat the ADA as what it is: a law designed to

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level the playing field for disabled employees, not an affirmative action statute.

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Since 12111(9) uses the phrase may include rather than shall include, this

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Court should find that based on the plain language of the ADA, reassignment to a vacant

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position is not mandatory.

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B.

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This Court may look to legislative history to help interpret statutes. Commack

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The District Court Correctly Granted Summary Judgment Because The

Legisature Intended That Both Parties Negotiate The Most Reasonable
Accommodation For Each, Showing That Reassignment Was Not Intended
To Be Mandatory

Self-Service Kosher Meats, Inc. v. Hooker, 680 F.3d 194, 213 (2d Cir. 2012). However,

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when interpreting a federal statute, the Court should look first to its plain language; the

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court may turn to legislative history to aid in interpretation only if the statute remains

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unclear. U.S. v. DiChristina, 726 F.3d 92, 103 (2d Cir. 2013).

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A Senate Record on the ADA states that the list of examples of reasonable

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accommodations in the ADA is not intended to cover every type of accommodation that

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will ever be needed, but rather to demonstrate some of the many forms accommodation

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can take. 135 Cong. Rec. S10765-01, (daily ed. September 7, 1989) (Opening of

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Session). Congress did not intend for the list of reasonable accommodations to be seen as

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all-inclusive. The accommodations listed within the statute were intended more as

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examples and guides than mandatory terms. Reassignment to a vacant position was just

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one of a variety of possibilities that the parties could choose. To determine which

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accommodations should be chosen, Congress intended that employers and disabled

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employees cooperate and decide together what reasonable accommodation would be best

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in their particular situation, based on their particular needs. H.R. Rep. No. 485(II), at

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62 (1990), reprinted in 1990 U.S.C.C.A.N. 303.

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Courts finding that reassignment should be mandatory may argue that

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reassignment to a vacant position is a special form of accommodation, that should only

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be used when other accommodations have failed. Aka, 156 F.3d at 1301. Under this line

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of reasoning, reassignment would be mandatory if there were no other options.

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However, this view conflicts with the Supreme Court in U.S.

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Airways, Inc. v. Barnett, which showed that certain company policies,

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such as a seniority system, could trump reassignment unless the

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employee made a showing that they have special circumstances

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requiring an exception to that policy. 535 U.S. 391, 405 (2002). In

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Barnett, the Supreme Court laid out a two-part test to determine

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whether reassignment was a reasonable accommodation given an

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employer's particular policies. Id. First, an employer must show that in

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the run of cases, reassignment would not ordinarily be reasonable; this

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analysis focuses on the benefits of the employers policy (in Barnett, a

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seniority system) and the negative effects of violating it. Id. at 403.

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The burden then shifts to the employee to show that they have special

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circumstances requiring an exception to those policies. Id. at 405.

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Even though the court in Barnett suggested that preferences were

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allowed for disabled employees as a part of reasonable

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accommodation, the court nevertheless required that the parties go

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through this process before determining what accommodation is

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reasonable. Id. at 398. The employee would still have to show their special

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circumstances even if other accommodations had failed.

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Additionally, if reassignment was seen as mandatory as a last resort, it could be a

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disservice to both parties, as it could lead to an employee being assigned to a position that

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they have little experience in (increasing their chances of getting fired for valid work-

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related reasons), as well as keeping the employer from putting qualified workers where

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they are most capable. Thus, reassignment to a vacant position cannot be considered a

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special class of accommodation exempt from the test in Barnett or Congresss

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expectation of cooperative negotiation. The court in Barnett

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acknowledged that there must be an exchange between the employer

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and employee, showing that certain accommodations would be

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reasonable (or unreasonable) in their situation.

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Although PEN does not have a seniority system like the employer in Barnett,

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PEN's best-qualified candidate policy shares many of the same benefits. Like the

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seniority system in Barnett, PEN's policy ensures consistency regarding the placement of

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employees by enforcing objective standards. Id. at 404. These objective standards, such

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as the amount of experience a job applicant has with a particular role, allow for the

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elimination of bias that may otherwise unfairly prevent some from getting the job.

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Violation of the best-qualified candidate policy would lead to inconsistency in the hiring

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process, and would allow for off-the-cuff decisionmaking rather than basing employment

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on objective criteria. There would be nothing preventing a hiring manager from choosing

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employees based his own personal whims. Thus, the best-qualified candidate policy

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would likely fall into the category where, in the "run of the cases," reassignment is

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ordinarily unreasonable. The burden would then shift to Burgundy to show that he has

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special circumstances such as to make an exception to PEN's policy.

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Instead, Burgundy is trying to skip over this necessary analysis. Effectively he is

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trying to put the wagon before the horse, claiming that reassignment is mandatory before

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engaging in any sort of dialogue with PEN over what accommodations are best for them

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both. This view is incompatible with both the legislatures intent and the test in Barnett,

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which together show that reassignment is not to be considered mandatory. Burgundy is

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trying to skip past any negotiation or test and claim that reassignment is automatically

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mandatory. That was not the legislatures intent, was not the Barnett courts holding, and

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should not be this Courts decision.

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For these reasons, the legislative history and the Supreme Court's holding in
Barnett show that Congress did not intend reassignment to be mandatory.

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CONCLUSION
This Court should affirm the District Court's decision, and hold that reassignment
to a vacant position is not mandatory under the ADA.

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