Davidson v. America Online, Inc.

F I L E D
United States Court of Appeals
Tenth Circuit

JUL 30 2003
PUBLISH

UNITED STATES COURT OF APPEALS PATRICK FISHER
Clerk
TENTH CIRCUIT

GEORGE M. DAVIDSON,

Plaintiff - Appellant,

v. No. 01-4253

AMERICA ONLINE, INC., a Virginia
corporation,

Defendant - Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
(D.C. No. 1:99-CV-00138-ST)

Stephen P. Horvat of Anderson & Karrenberg, Salt Lake City, Utah, for the
Plaintiff-Appellant.

Gregory W. Stevens of Salt Lake City, Utah, for the Defendant-Appellee.

Before LUCERO, HARTZ and ROBINSON *, Circuit Judges.

ROBINSON, District Judge.

*
The Honorable Julie A. Robinson, United States District Judge for the
District of Kansas sitting by designation.
 Plaintiff George Davidson sued America Online, Inc. (“AOL”) for an

alleged violation of the Americans with Disabilities Act of 1990 (“ADA”),

42 U.S.C. §§ 12101-12213. Plaintiff, who is deaf, alleges that AOL failed to hire

or consider him for employment because of his disability. The United States

District Court for the District of Utah granted summary judgment in favor of

AOL, and plaintiff appealed. Exercising jurisdiction under 28 U.S.C. § 1291, we

affirm the district court’s decision that one of plaintiff’s claims of discrimination

is time-barred. On his remaining claim, however, we conclude that plaintiff made

out a prima facie case of discrimination under the ADA and therefore reverse.

STANDARD OF REVIEW

“We review the district court’s grant of summary judgment de novo,

applying the same legal standard used by the district court.” Simms v. Oklahoma

ex rel. Dept. of Mental Health and Substance Abuse Services, 165 F.3d 1321,

1326 (10 th Cir.) (citation omitted), cert. denied, 528 U.S. 815, 120 S.Ct. 53, 145

L.Ed.2d 46 (1999). Summary judgment is appropriate only “if the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact and

that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(c). “When applying this standard, we view the evidence and draw reasonable

inferences therefrom in the light most favorable to the nonmoving party.” Simms,

165 F.3d at 1326 (citation omitted). The nonmovant is given “wide berth to prove

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a factual controversy exists.” Jeffries v. State of Kan., 147 F.3d 1220, 1228 (10 th

Cir. 1998) (quoting Ulissey v. Shvartsman, 61 F.3d 805, 808 (10 th Cir. 1995)).

BACKGROUND

AOL provides online and interactive computer services. AOL maintains a

Call Center in Ogden, Utah where AOL “Customer Care Consultants” handle

communications to and from members, in various forms, including voice

telephone, mail, e-mail, Instant Message and text telephone services for the deaf.

AOL staffs its Call Center with “voicephone” and “non-voicephone” positions.

Voicephone positions and non-voicephone positions have the same pay level,

benefit level and seniority levels. Most of the work at the Ogden Call Center is

done by “Technical Consultants” who communicate with AOL members solely by

voice telephone. AOL members are able to call through an inbound toll free

number.

During the period from March 1996 through October 1996, AOL hired

seven deaf persons from outside AOL for non-voicephone positions, handling

mail and e-mail communications. In 1997, AOL opened a Call Center in the

Philippines, purportedly to take advantage of inexpensive labor costs. The

Philippines Call Center primarily handled non-voicephone communications. As a

result, AOL adopted a policy of not hiring external job applicants to fill any non-

voicephone positions. After this change, only voicephone positions were

available to external job applicants. While no deaf employees were discharged as

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a result of this policy, AOL concedes that under this policy, a deaf person will no

longer be considered for employment at AOL. External job applicants hired for

voicephone positions are sometimes transferred to non-voicephone positions

within two to three weeks after they are hired.

Davidson, who is deaf, applied for a job at AOL in September 1997 and

November 1998. Davidson was acquainted with some of the deaf employees

hired externally by AOL in 1996. At the times Davidson applied, AOL was hiring

externally for voicephone positions. Davidson submitted a cover letter,

application and resume that stated he was applying for any position that did not

require speaking on the telephone. When he did not hear back after submitting

his first application, Davidson contacted AOL and was told that all available

positions had been filled. Davidson claims that when he applied again in 1998,

AOL human resources personnel told him that AOL had changed its hiring policy

to limit non-voicephone positions to internal hires, no longer hired deaf people,

and would not hire him because he was deaf.

While Davidson’s application was pending in 1997, AOL transferred

approximately 20 employees from voicephone positions into non-voicephone

positions at the Ogden Call Center. After Davidson applied and was rejected

again in 1998, he was told by AOL that non-voicephone positions had been filled

by internal transfer that very week.

Davidson filed an administrative claim with the state agency on January 7,

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1999. Upon referral, the EEOC issued a Notice of Right to Sue. On December 2,

1999, Davidson filed suit, alleging that AOL discriminated against him in

violation of the ADA. On AOL’s motion for summary judgment, the district court

dismissed Davidson’s Complaint, concluding (1) the claim regarding the

September 1997 incident was time-barred; (2) Davidson failed to establish a

prima facie case of discrimination because he was not “qualified, with or without

reasonable accommodation, to perform the essential functions of the positions that

were offered to and open for external hires”; and (3) it would be an unreasonable

accommodation to force AOL to restructure its hiring practices as requested by

Davidson. Davidson appeals.

DISCUSSION

I. Continuing Violation

Davidson filed suit on the basis of AOL’s refusal to consider him for

employment on two occasions: in September 1997 and November 1998. He filed

his administrative claim for both actions on January 7, 1999. Incorporating the

procedural rules of Title VII, the ADA requires an individual to file a timely

administrative claim within 300 days 1 of the challenged action. 42 U.S.C.

§ 12117(a); § 2000e-5. The filing is a prerequisite to a civil suit under Title VII

1
In states in which a state agency has authority to investigate employment
discrimination (“deferral states”), Title VII requires claimants to file a charge of
discrimination within 300 days of the alleged unlawful employment practice. 42
U.S.C. § 2000e-5(e)(1). Utah is a deferral state.

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and a claim is time-barred if it is not filed within these time limits. Bullington v.

United Air Lines Inc., 186 F.3d 1301, 1310 (10 th Cir. 1999) (citing Aronson v.

Gressly, 961 F.2d 907, 911 (10 th Cir. 1992)). Davidson’s administrative claim

was filed more than 300 days after the September 1997 failure to hire.

Davidson attempted to avoid this apparent untimeliness by invoking the

continuing violation doctrine. We have held that, under proper circumstances, a

plaintiff may recover for discriminatory acts that occurred prior to the statutory

limitations period if they are “part of a continuing policy or practice that includes

the act or acts within the statutory period.” Macheroni v. Board of Regents of the

Univ. of Cal., 28 F.3d 1554, 1561 (10 th Cir. 1994) (quoting Martin v. Nannie &

the Newborns, Inc., 3 F.3d, 1410, 1415). A plaintiff may establish a continuing

violation by showing either that (1) a series of related acts was taken against him,

with one or more of those acts occurring within the limitations period, or (2) the

defendant maintained a company-wide policy of discrimination both before and

during the limitations period. Bennett v. Quark, Inc., 258 F.3d 1220, 1227 (10 th

Cir. 2001) (citation omitted). The district court concluded that Davidson failed to

make the necessary showing under either of these tests. Davidson maintains on

appeal that the continuing violation doctrine applies under both approaches.

Davidson argues that the continuing violation doctrine is applicable to this

case because the two refusals to hire were part of a series of related acts. In

analyzing whether alleged discriminatory acts are sufficiently related to constitute

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a continuing violation or whether such acts are discrete acts which must be

regarded as individual violations, we have used a three-part inquiry to determine

whether there was a continuing violation: “(i) subject matter–whether the

violations constitute the same type of discrimination; (ii) frequency; and

(iii) permanence–whether the nature of the violations should trigger an

employee’s awareness of the need to assert her rights and whether the

consequences of the act would continue even in the absence of a continuing intent

to discriminate.’” Macheroni, 28 F.3d at 1561 (quoting Martin, 3 F.3d at 1415)).

We have noted that the continuing violation doctrine “is premised on the

equitable notion that the statute of limitations should not begin to run until a

reasonable person would be aware that his or her rights have been violated.”

Bullington, 186 F.3d at 1311 (quoting Martin, 3 F.3d at 1415 n. 6). Thus, we

have held that a continuing violation claim fails “if the plaintiff knew, or through

the exercise of reasonable diligence would have known, she was being

discriminated against at the time the earlier events occurred.” Id.

Subsequent to the district court’s decision, the Supreme Court revised the

standard courts must apply in determining the timeliness of Title VII claims. See

National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 153

L.Ed.2d 1601 (2002). Where a change in law occurs while a case is on appeal, we

apply the law in effect at the time of our decision. Miller v. City of Mission, 705

F.2d 368, 377 (10 th Cir. 1983). We can find no basis upon which to restrict the

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Court’s holding to Title VII, and we therefore conclude that the Court’s reasoning

in Morgan must be applied to cases brought under the ADA.

In Morgan, the Supreme Court held that a continuing violation theory of

discrimination is not permitted for claims against discrete acts of discrimination,

such as termination, failure to promote, denial of transfer, or a refusal to hire.

536 U.S. at 114. The Court concluded that “[t]here is simply no indication that

the term ‘practice’ converts related discrete acts into a single unlawful practice

for the purposes of timely filing.” Id. at 111. Instead, the Court held that a

discrete retaliatory or discriminatory act “occurred” on the day that it “happened.”

Id. at 110. Thus, a claimant must file a charge of discrimination within the

appropriate limitations period as to each such discrete act of discrimination that

occurred. Id. The Court further emphasized that “discrete discriminatory acts are

not actionable if time-barred, even when they are related to acts alleged in timely

filed charges.” Id. at 113. Instead, “[e]ach discrete discriminatory act starts a new

clock for filing charges alleging that act.” Id. 2

By contrast, the Supreme Court held that “[h]ostile work environment

claims are different in kind from discrete acts.” Morgan, 536 U.S. at 115. The

Court expressly held that the date on which a plaintiff becomes aware that he or

2
The Court noted, however, that the statute does not bar an employee from
using time-barred acts as background evidence in support of a timely claim.
Morgan, 536 U.S. at 113.

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she has an actionable Title VII claim is of no regard in the context of determining

the timeliness of a hostile work environment claim. Id. at 117 n. 11. Key to the

Court’s ruling was its determination that the series of acts constituting a hostile

work environment constitute only one unlawful employment practice. Id. at 118.

We recently held that Morgan implicitly overruled Bullington, Martin and other

Tenth Circuit cases to the extent these cases held that recovery on a Title VII

hostile work environment claim is not available for acts taken outside the

statutory time period where the plaintiff knew or should have known the conduct

was discriminatory when the acts occurred. Boyer v. Cordant Technologies, Inc.,

316 F.3d 1137 (10 th Cir. 2003).

By eliminating the continuing violation doctrine for discrete discriminatory

acts, Morgan attempts to resolve the inconsistent and confusing application of the

doctrine by the appellate courts. The Court reversed the Ninth Circuit’s

application of its continuing violation doctrine to Morgan’s discrimination claim.

Under the Ninth Circuit formulation, the continuing violation doctrine was

applicable as long as the time-barred conduct was sufficiently related to the

timely conduct, without regard to whether plaintiff was aware of the need to

assert his rights. Douglas v. California Dept. of Youth Auth., 271 F.3d 812, 824

n. 13 (9 th Cir. 2001) (citation omitted). By contrast, the Third, Fifth, Sixth and

Eleventh Circuits, along with this Court, applied the three-factor test that focused

on whether the nature of the violation should trigger an employee’s awareness of

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the need to assert his rights. See Martin, 3 F.3d at 1415 and n. 6; West v.

Philadelphia Elec. Co., 45 F.3d 744, 755 n. 9 (3 rd Cir. 1995); Berry v. Board of

Supervisors, 715 F.2d 971 (5 th Cir. 1983); Bell v. Chesapeake & Ohio Ry., 929

F.2d 220, 223-25 (6 th Cir. 1991); Roberts v. Gadsden Mem’l Hosp., 835 F.2d 793,

801 (11 th Cir. 1998). A third formulation adopted by the Seventh Circuit, applied

the doctrine to cases where it would have been unreasonable to expect the

plaintiff to sue before the statute ran on that conduct. Galloway v. Gen. Motors

Serv. Parts Operations, 78 F.3d 1164, 1167 (7 th Cir. 1996).

We must conclude from Morgan’s holdings that when a plaintiff pursues

several disparate treatment claims based on discrete discriminatory acts, the

limitations period will begin to run for each individual act from the date on which

the underlying act occurs. Accordingly, Morgan implicitly overturns prior Tenth

Circuit law in that plaintiffs are now expressly precluded from establishing a

continuing violation exception for alleged discrete acts of discrimination

occurring prior to the limitations period, even if sufficiently related to those acts

occurring within the limitations period. Accord Sharpe v. Cureton, 319 F.3d 259,

268 (6 th Cir. 2003).

Under Morgan, it is clear that the 1997 and 1998 refusals to hire are

discrete acts. See 536 U.S. at 114 (specifically identifying refusals to hire as

easily identified discrete acts). Each discrete refusal to hire is a separate

actionable unlawful employment practice that “starts a new clock for filing a

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charge alleging that act.” Id. at 113. Thus, Davidson is limited to filing a claim

for the refusals to hire that “occurred” within the appropriate time period. Id. at

114.

This remains true even if the discrete act was part of a company-wide or

systemic policy 3. Davidson’s allegation that the discrete refusals to hire were

undertaken pursuant to AOL’s discriminatory hiring policy does not extend the

statutory limitations period. Cherosky v. Henderson, ---F.3d---, 2003 WL

21286574 (9 th Cir. 2003). Davidson chose to bring separate claims based on

discrete discriminatory acts. The essence of his complaint does not stem from the

hiring policy, but rather from the individualized refusals to hire that resulted from

implementation of the policy. His assertion that these discrete acts flow from a

company-wide or systemic discriminatory practice will not succeed in establishing

AOL’s liability for acts occurring outside the limitations period because the

Morgan Court determined that each incident of discrimination constitutes a

separate actionable unlawful employment practice. Id. (citing Lyons v. England,

307 F.3d 1092, 1107 (9 th Cir. 2002)).

The Morgan Court wrote, “[w]e have repeatedly interpreted the term

‘practice’ to apply to a discrete act or single ‘occurrence,’ even when it has a

The question of how Title VII’s filing deadlines should be applied to
3

pattern-or-practice claims based on a series of discriminatory acts, some of which
occurred outside the limitations period, has been left unanswered by the Court,
and we do not consider it here. Morgan, 536 U.S. at 115 n. 9.

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connection to other acts.” 536 U.S. at 111. As an example, the Court cited

Bazemore v. Friday, 478 U.S. 385, 106 S.Ct. 3000, 92 L.Ed.2d 315 (1986), in

which the Court considered a pattern-or-practice challenge to a discriminatory

salary structure. Id. The Court stated that the Bazemore Court “noted that

although the salary discrimination began prior to the date that the act was

actionable under Title VII, ‘[e]ach week’s paycheck that deliver[ed] less to a

black than to a similarly situated white is a wrong actionable under Title VII.’”

Id. at 112 (citation omitted). Similarly, the alleged wrong in this case occurred

when the hiring policy was invoked to deny Davidson employment.

Thus, we affirm the district court’s finding that Davidson’s 1997 refusal to

hire claim is time-barred.

Discovery Rule

Davidson argues that his case differs from Morgan because until he learned

of AOL’s hiring policy when he was denied employment for a second time in

November 1998, he had no way of knowing AOL’s reason for refusing to hire him

in September of 1997. By invoking the so-called “discovery rule,” Davidson

argues that his 1997 claim of discrimination did not accrue until he discovered

AOL’s reason for refusing to hire him–the discriminatory hiring policy. In

Morgan, the Supreme Court left open the issue of claim accrual: “[t]here may be

circumstances where it will be difficult to determine when the time period should

begin to run. One issue that may arise in such circumstances is whether the time

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begins to run when the injury occurs as opposed to when the injury reasonably

should have been discovered.” 536 U.S. at 114 n. 7. The Court also noted that

such claims remained subject to equitable doctrines including tolling and

estoppel. Id. at 113.

Davidson does not claim he was unaware that he had not been hired by

AOL in September 1997. Rather, he claims that he did not discover the existence

of AOL’s discriminatory hiring policy until November 1998, and that the statute

should start to run on this date. Davidson argues that the continuing violation

doctrine operates as a discovery rule, and that Morgan does not foreclose its

application. However, outside the context of the continuing violation doctrine,

this Circuit’s precedent on claim accrual in discrimination cases does not support

Davidson’s position.

In Hulsey v. Kmart, Inc., we held that a cause of action accrues under the

Age Discrimination in Employment Act (ADEA) on “the date the employee is

notified of an adverse employment decision” by the employer. 43 F.3d 555, 557

(10 th Cir. 1994) (citing Gray v. Phillips Petroleum Co., 858 F.2d 610, 613 (10 th

Cir. 1988) (citing Delaware State College v. Ricks, 449 U.S. 250, 256-59, 101

S.Ct. 498, 503-04, 66 L.Ed 2d 431 (1980)). In Hulsey, the plaintiffs were

demoted from their positions and transferred to different stores. Two years later,

the plaintiffs viewed a television program, “A Current Affair,” which purportedly

revealed that their demotions were motivated by age discrimination. The

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plaintiffs thereafter filed suit and argued that their cause of action did not accrue

until the time that they watched the television program. We rejected their

argument, holding that:

A cause of action accrues under the Age Discrimination
in Employment Act (“ADEA”) on the date the employee
is notified of an adverse employment decision.
Generally, an employee is notified of an adverse
employment decision when a particular event or
decision is announced by the employer. It is undisputed
that the allegedly discriminatory actions by Kmart
against Employees were the demotions and transfers. As
such, Employees’ cause of action accrued on the dates
Kmart notified them of their new assignments.

Hulsey, 43 F.3d at 557 (emphasis added) (quotations omitted).

In Bennett v. Coors Brewing Co., 189 F.3d 1221, 1235 (10 th Cir. 1999),

employees who took early retirement packages argued that their discrimination

claims under the ADEA did not arise until the date that the employer hired its

first replacement employee. Applying Hulsey, we rejected this argument, holding

that because the employees’ claims were for constructive discharge, their claims

accrued on the date the discharge occurred, stating, “[w]hile the hiring of new,

younger employees might be evidence of Coors’ alleged discriminatory intent at

the time appellants left Coors, it is the alleged discriminatory ‘discharge’ that

appellants seek to redress.” Id. at 1235.

Applying Hulsey and Bennett, Davidson’s first refusal to hire claim began

to accrue in September 1997, when AOL communicated to him that his first job

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application was rejected. According to Davidson, he did not file an EEOC charge

in September 1997, because he was merely told that “all available positions had

been filled.” Despite his inquiries, Davidson claims, AOL did not inform him of

its internal hiring policy for non-voicephone positions or that he had not been

considered for employment because he is deaf. However, “notice or knowledge

of discriminatory motivation is not a prerequisite for a cause of action to accrue. .

. . [o]n the contrary, it is knowledge of the adverse employment decision itself

that triggers the running of the statute of limitations.” See Hulsey, 43 F.3d at 558-

559 (citations omitted). As we have recognized, “[a] declaration of discrimination

need not be issued before the statute of limitations begins to run.”Id. While

AOL’s hiring policy might be evidence of its alleged discriminatory motive at the

time it refused to hire Davidson in 1997, it is the alleged discriminatory refusal to

hire that Davidson seeks to redress. Thus, September 1997 is the date when

Davidson’s first discriminatory refusal to hire claim began to accrue.

Davidson argues that under this logic, every job applicant who is rejected

should file an administrative claim to preserve his or her rights in the event that it

is later discovered that the refusal to hire was based on discriminatory motives.

This, Davidson argues, will foster “hostility, paranoia and countless meritless

administrative claims.” However, as we explained in Hulsey, it is not necessary

for a claimant to know all the evidence upon which he will ultimately rely at trial

in order to file a charge with the EEOC:

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 We may presume that many facts will come to light after the date of
an employee’s termination, and indeed one purpose of a charge and a
complaint is to initiate the process of uncovering them. It is
sufficient that [plaintiff] was on notice at the moment of his alleged
constructive termination “to inquire whether there was [a]
discriminatory motive for the discharge.”

Hulsey, 43 F.3d at 558 (quoting Olson v. Mobil Oil Corp., 904 F.2d 198, 201 (4 th

Cir.1990).

Finally, we note that Davidson appears to have confused the difference

between the accrual of his 300-day period of limitations and the equitable tolling

of that limitations period. See Amini v. Oberlin College, 259 F.3d 493, 499-500

(6 th Cir. 2001) (discussing the two doctrines and the confusion they invite). The

Morgan Court acknowledged that the 300-day period of limitations for filing a

charge with the EEOC may be adjusted by equitable doctrines such as waiver,

estoppel and equitable tolling. 536 U.S. at 113 (citation omitted). Davidson did

not raise equitable tolling as an objection or response to AOL’s motion for

summary judgment, going so far as to specifically state at oral argument before

the district court that he was not raising an equitable tolling defense as an

alternative to his invocation of the continuing violation doctrine. We will not

consider a new legal theory on appeal, even if it “falls under the same general

category as an argument presented at trial.” Jantzen v. Hawkins, 188 F.3d 1247,

1257 (10 th Cir. 1999) (quoting Bancamerica Commercial Corp. v. Mosher Steel of

Kan., Inc., 100 F.3d 792, 798 (10 th Cir.), opinion amended on other grounds, 103

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F.3d 80 (10 th Cir. 1996)).

II. ADA Claim

The ADA provides in relevant part that “[n]o covered entity shall

discriminate against a qualified individual with a disability because of the

disability of such individual in regard to” a number of actions by an employer,

including “hiring.” 42 U.S.C.§ 12112(a). To establish a prima facie case of

discrimination under the ADA, a plaintiff must show “(1) that he is disabled

within the meaning of the ADA; (2) that he is qualified, with or without

reasonable accommodation, to perform the essential functions of the job held or

desired; and (3) that he was discriminated against because of his disability.”

McKenzie v. Dovala, 242 F.3d 967, 969 (10 th Cir. 2001) (quoting Aldrich v.

Boeing Co., 146 F.3d 1265, 1269 (10 th Cir. 1998) (internal quotation omitted)).

Defining and applying an appropriate framework for analyzing claims of

discrimination has proven difficult, as evidenced by the parties’ conflicting

theories of discrimination. We pause to examine the theories under which ADA

claims should be analyzed.

“Discrimination” as used in the ADA encompasses three distinct types of

discrimination. First, it means treating “a qualified individual with a disability”

differently because of the disability, that is, disparate treatment. Additionally,

because the ADA defines discrimination in part as “not making reasonable

accommodations to the known physical or mental limitations of an otherwise

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qualified individual . . . ,” 42 U.S.C. § 12112(b)(5)(A), a separate claim of

discrimination can be stated under the ADA for failing to provide a reasonable

accommodation. Finally, under a disparate impact theory, discrimination is

defined as including the use of “qualification standards . . . or other selection

criteria that screen out or tend to screen out an individual with a disability. . . .”

42 U.S.C. § 12112(b)(6). No matter what type of discrimination is alleged,

however, a plaintiff must establish first that he was “a qualified individual with a

disability.”

This case involves a claim of disparate treatment discrimination in that

Davidson contends that AOL intentionally discriminated against him by failing to

consider him for employment on account of his disability. The burden shifting

analysis established in McDonnell Douglas Corp v. Green, 411 U.S. 792, 93 S.Ct.

1817, 36 L.Ed.2d 668 (1973) generally applies to ADA disparate treatment

claims. See Hardy v. S.F. Phosphates Ltd. Co., 185 F.3d 1076, 1079 (10 th Cir.

1999). Under that analysis, a plaintiff carries the burden of raising a genuine

issue of material fact on each element of his prima facie case. If plaintiff

establishes a prima facie case, the burden shifts to the defendant to offer a

legitimate nondiscriminatory reason for its employment decision. Id. If

defendant articulates a nondiscriminatory reason, the burden shifts back to

plaintiff to show a genuine issue of material fact as to whether the defendant’s

reason for the adverse employment action is pretextual. Id. at 1079-1080.

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 “If the employer admits that the disability played a prominent part in the

decision, or the plaintiff has other direct evidence of discrimination based on

disability, the burden-shifting framework may be unnecessary and inappropriate.

Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 n. 3 (10 th Cir. 1997) (citing White v.

York Int’l Corp., 45 F.3d 357, 361 n. 6 (10 th Cir. 1995)). Instead, an employer

will defend its decision on the ground that the plaintiff is not otherwise qualified

for the position, with or without reasonable accommodation. The McDonnell

Douglas burden shifting approach is unnecessary because the issue of the

employer’s intent has been admitted and the plaintiff has direct evidence of

discrimination on the basis of his disability. If the plaintiff in such a case is in

fact statutorily disabled, the determinative issue in the case will not be the

employer’s intent, but whether the employee is “otherwise qualified,” with or

without reasonable accommodation, to perform the job, a factual dispute that is

resolved through traditional methods of proof. Monette v. Electronic Data

Systems Corp., 90 F.3d 1173, 1182 (6 th Cir. 1996) (discussing White, 45 F.3d at

361 n. 6).

We now turn to the framework of the arguments on appeal. The parties

disagree whether the McDonnell Douglas burden shifting analysis applies to this

case. It is undisputed that Davidson is disabled. Davidson contends that he is

qualified to perform the essential functions of the jobs he desires, the non-

voicephone positions. AOL’s explanation for its refusal to hire Davidson is that

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he was unable to perform the jobs available for external hire, that is, the

voicephone positions. Viewed properly, this reason is related to Davidson’s

disability. In other words, AOL’s explanation for its action established that it

relied on Davidson’s disability when it refused to hire him. Accordingly, we

believe the McDonnell Douglas burden shifting analysis is inappropriate to the

facts of this case. Thus, the key to our decision is whether Davidson is a

“qualified individual” as defined by the ADA.

A. Qualified Individual

In granting summary judgment for AOL, the district court focused on the

second element of the prima facie case, holding that Davidson was not a

“qualified individual.” The ADA defines a “qualified individual” as “an

individual with a disability who, with or without reasonable accommodation, can

perform the essential functions of the employment position that such individual

holds or desires.” 42 U.S.C. § 12111(8). We have endorsed a two-part analysis to

determine whether a person is qualified under the ADA. Aldrich v. Boeing Co.,

146 F.3d at 1271. First, the court determines whether the individual can perform

the essential functions of the job. Id. Second, if (but only if) the court concludes

that the individual is unable to perform the essential functions of the job, the

court determines whether any reasonable accommodation by the employer would

enable him to perform those functions. Id. (citations omitted).

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 1. Essential Functions.

Our first task is to determine, assuming the facts to be as Davidson has

presented them, whether Davidson can perform the essential functions of “the

employment position that [he] holds or desires.” 42 U.S.C. § 12111(8) (emphasis

added). In determining that Davidson was not a qualified individual, the district

court held that the job at issue was limited to positions “that were offered to and

open for external hires. . . . [H]e has not shown that he is qualified for the jobs

that were available.” This analysis is in error.

The district court’s interpretation of qualified individual reads out the

critical phrase “or desires.” We do not read § 12111(8) so narrowly. The ADA

explicitly covers job applicants as well as employees. See 42 U.S.C. § 12112(a)

(prohibiting, inter alia, “discriminat[ion] . . . in regard to job application

procedures” and “the hiring . . . of employees”). Davidson applied and asked to

be considered for any existing non-voicephone job at AOL. AOL admits that

such positions were available, but that they are limited to internal hires. The idea

underlying AOL’s position is that the company’s decisions with respect to filling

the non-voicephone positions cannot be characterized as hiring decisions, because

the company placed only existing employees in those positions. We recognize

that “hiring” could be thought of as limited to the initial process through which a

person joins the employer’s workforce. In our view, however, “hiring” under the

ADA encompasses the general process of selecting a person to hold a given job,

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regardless of whether applicants must already be working for the employer. 4

Under the ADA, Davidson is a “qualified individual” as long as he can

perform a job at AOL that he “desires.” 42 U.S.C. § 12111(8); see McKenzie v.

Dovala, 242 F.3d at 974 (ADA protection extends to a former employee with a

disability seeking to be rehired who is qualified for a position she desires); Smith

v. Midland Brake, Inc., 180 F.3d 1154, 1161 (10 th Cir. 1999) (en banc) (“To read

the ADA otherwise, would render the word ‘desires’ meaningless, and we must

avoid such a construction.” (citations omitted)). Davidson applied and asked to

be considered for any non-voicephone position at AOL; such non-voicephone

positions were available, albeit internally, when he applied. Thus, the non-

voicephone positions are the proper jobs we must analyze to determine whether

Davidson is a qualified individual. See Seiberns v. Wal-Mart Stores, Inc.,

125 F.3d 1019, 1022-23 (7 th Cir. 1997) (holding that an applicant is not a

qualified individual unless he can perform the essential functions of the position

for which he actually applied).

The term “essential function” is defined as “the fundamental job duties of

the employment position the individual with a disability holds or desires.”

4
The common usage of the term “hiring” has encompassed filling positions
from within or outside of a company. See Prince George’s County v. United
States Dep’t of Labor, 719 F.2d 726, 728 (4th Cir. 1983) (holding that the term
“hire,” as used in a federal anti-nepotism regulation, applied to the transfer of a
long-time county employee from one position into a similar position in a different
program).

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29 C.F.R. § 1630.2(n)(1); Martin v. Kansas, 190 F. 3d 1120, 1130 (10 th Cir.

1999). This term does not include marginal functions of the position. 29 C.F.R.

§ 1630.2(n)(1); White v.York Int’l Corp., 45 F.3d at 361. Determining whether a

particular function is essential is a factual inquiry. See id. In making this

determination, courts must give consideration to the employer’s judgment as to

what functions of a job are essential, including those functions contained in a

written job description. See id.; see also 42 U.S.C. § 12111(8). However, such

evidence is not conclusive; “an employer may not turn every condition of

employment which it elects to adopt into a job function, let alone an essential job

function, merely by including it in a job description.” Echazabal v. Chevron USA,

Inc., 226 F.3d 1063, 1071 (9 th Cir. 2000) (rev’d on other grounds, 536 U.S. 73,

122 S.Ct. 2045, 153 L.Ed.2d 82 (2002).

“The question of whether a job requirement is a necessary requisite to

employment initially focuses on whether an employer actually requires all

employees in the particular position to satisfy the alleged job-related

requirement.” Tate v. Farmland Industries, Inc., 268 F.3d 989, 993 (10 th Cir.

2001) (citing Milton v. Scrivner, Inc., 53 F.3d 1118, 1124 (10 th Cir. 1995). If the

employer does require performance of those functions, “the inquiry will then

center around whether removing the function would fundamentally alter the

position.” Milton, 53 F.3d at 1124. This inquiry is not intended to second guess

the employer or to require him to lower company standards. Id.; see also

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29 C.F.R. Pt. 1630, App. § 1630.2(n); H.Rep. No. 101-485(II), at 55 (1990),

reprinted in 1990 U.S.C.C.A.N. 303, 337 (The ADA “does not undermine an

employer’s ability to choose and maintain qualified workers.”) Provided that any

necessary job specification is job-related, uniformly enforced, and consistent with

business necessity, the employer has a right to establish what a job is and what is

required to perform it. Tate, 268 F.3d at 993; H.Rep. 101-485(II), at 56, reprinted

in 1990 U.S.C.C.A.N. at 338 (“Under this legislation an employer may still devise

physical and other job criteria and tests for a job as long as the criteria or tests are

job-related and consistent with business necessity.”)

In this case, the job functions at issue are those associated with the non-

voicephone positions. AOL’s hiring policy sets one requirement for the

nonvoicephone positions that Davidson cannot meet. Voicephone experience is a

prerequisite for placement in any non-voicephone position. AOL cites several

factors to illustrate that it has a legitimate basis for requiring voicephone

experience: productivity demands, knowledge and experience, employee incentive

and cost effectiveness.

Viewing the facts in a light most favorable to Davidson, we conclude that

he has alleged sufficient facts to establish a genuine issue of material fact of

whether voicephone experience is an essential function of all of the non-

voicephone positions that he desires the opportunity to fill, notwithstanding the

hiring policy AOL has propounded. Notably, although AOL makes the broad

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assertion that non-voicephone positions require AOL voicephone experience, it

admits that voicephone personnel have been transferred to non-voicephone

positions with as little as two or three weeks experience. Moreover, AOL has

acknowledged that deaf persons can and have filled these positions successfully in

the past, until the hiring policy was changed in 1997. AOL’s claim that departure

from its hiring policy would harm current employee morale is belied by the

relatively rare possibility of a deaf person being hired directly into non-

voicephone positions. Nor is it clear that it would be unreasonably inefficient for

AOL to train deaf employees for non-voicephone positions. In the past, it

certainly has trained deaf external applicants for non-voicephone positions.

The district court declined to consider AOL’s proffered reasons justifying

its hiring policy, holding that “absent evidence of unlawful discrimination or that

a policy does not serve a legitimate business purpose, an employer’s business

judgment is not the province of the federal courts,” citing Anderson v. Coors

Brewing Co., 181 F.3d 1171, 1176 (10 th Cir. 1999). AOL’s requirement of

voicephone experience for non-voicephone positions may or may not be justified

as job-related or a business necessity, but that is a question for a jury to answer

with all the available evidence before it. For the foregoing reasons, we hold that

summary judgment in favor of AOL was improper as to the issue of whether

Davidson is a “qualified individual.”

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 2. Reasonable Accommodation.

Davidson has maintained throughout the case that because he met the first

prong of the “qualified individual” test, there is no need to consider the second

prong of the test. In the alternative, however, Davidson asserts that a reasonable

accommodation is for AOL to consider him for non-voicephone positions that

were vacant when he applied, despite AOL’s policy that such positions are not

open to external hires. AOL argues that waiving the hiring policy in the case of

persons with disabilities is not a reasonable accommodation because it would

constitute a “reassignment,” which it contends is not available to job applicants

and would impose an “undue hardship” on AOL. The district court agreed with

AOL, holding that an employer’s duty to reassign an employee to a vacant

position is limited to the situation in which there is a need to accommodate an

existing, disabled employee, citing Smith v. Midland Brake, 180 F.3d at 1154.

Given our conclusion that the proper jobs to consider in determining whether

Davidson is a qualified individual are the non-voicephone positions that he

desired, summary judgment was improper on this issue as well.

We do not decide whether reassignment is available to a job applicant

because what Davidson is demanding in this case is not a reassignment, but

rather, a restructuring of the non-essential requirements of the non-voicephone

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positions that Davidson desires. 5 We note that should a jury decide that

voicephone experience is an essential function, the inquiry ends there, because the

reasonable accommodation requested by Davidson is to eliminate that essential

function, which an employer is not required to do. Smith v. Blue Cross Blue

Shield of Kansas, Inc., 102 F.3d 1075, 1076 (10 th Cir. 1996), cert. denied, 522

U.S. 811, 118 S.Ct. 54, 139 L.Ed.2d 18 (1997) (citations omitted).

III. Conclusion

We AFFIRM the district court order that plaintiff’s 1997 refusal to hire

claim is time-barred. The order of the district court granting summary judgment

on plaintiff’s ADA claim is REVERSED and REMANDED for proceedings

consistent with this opinion.

We also reject AOL’s contention that its hiring policy is part of an
5

established seniority system entitled to deference under US Airways, Inc. v.
Barnett, 535 U.S. 391, 122 S.Ct. 1516, 152 L.Ed.2d 589 (2002), in the absence of
any evidentiary support for this claim.

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