Employment-10th Circuit Finds No Vacant Position Available To Accommodate A Disabled Employee Under the ADA

In Duvall v. Georgia Pacific Consumer Products, L.P., No. 08-7096 (10th Cir. 2010), the Court faced the question of whether a position is “vacant” for purposes of the Americans with Disabilities Act (“ADA”), so that a disabled employee may request reassignment to that position as a reasonable accommodation.

In this case, the plaintiff, Travis Duvall, who suffers from cystic fybrosis, worked in the shipping department of a paper mill owned by defendant, Georgia Pacific (“GP”). When GP decided to outsource the running of its shipping department, Duvall transferred to another department but found that the paper dust in the air made it impossible for him to work there. As a reasonable accommodation, Duvall requested that he be put back in his old shipping position, which was then occupied by a temporary contract worker pending the permanent outsourcing of the department, or in a position in the mill’s storeroom, which was also in flux at the time, being staffed with a number of temporary workers filling some of the storeroom positions. GP refused Duvall’s requests for reassignment, and Duvall sued under the ADA. The District Court granted summary judgment in favor of GP, and Duvall appealed.

The 10th Circuit Court held that the shipping department and storeroom positions, which had been filled by temporary workers, were not “vacant” within the meaning of the ADA, and consequently affirmed the District Court’s decision. In doing so, the Circuit Court said that an employer’s duty under the ADA to reassign a disabled employee to a vacant position is mandatory (unless the reassignment would be unreasonable). The question here is whether the employer had a vacant position. For ADA purposes, when a disabled employee requests reassignment to a new position as a reasonable accommodation, that position is “vacant” if it is available to similarly-situated nondisabled employees to apply for and obtain. Here, the positions in question-already occupied by temporary workers and unavailable to GP employees-were not vacant.