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
-2-
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
-3-
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,
-4-
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.
-5-
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
-6-
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
-7-
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.
-8-
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
-9-
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
-10-
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.
-11-
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
-12-
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
-13-
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
-14-
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:
-15-
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
-16-
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
-17-
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.
-18-
“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
-19-
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).
-20-
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,
-21-
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).
-22-
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
-23-
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
-24-
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.”
-25-
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
-26-
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.
-27-