Carl Daugherty v. The City of El Paso (1995)

See, e. g., EEOC v. Sara Lee Corp., 237 F. 3d 349, 353-355 (CA4 2001) (seniority system); EEOC v. Humiston-Keeling, Inc., 227 F. 3d 1024, 1028-1029 (CA7 2000) (policy of assigning the most qualified applicant); Burns v. Coca-Cola Enterprises, Inc., 222 F. 3d 247, 257-258 (CA6 2000) (policy of reassigning employees only if they request a transfer to an advertised vacant position); Cravens v. Blue Cross and Blue Shield of Kansas City, 214 F. 3d 1011, 1020 (CA8 2000) (assuming …

Cf. Davoll v. Webb, 194 F. 3d 1116, 1132 (CA10 1999); Daugh- erty v. El Paso, 56 F. 3d 695, 699 (CA5 1995).

Further, plaintiff conceded he was not medically qualified for any position with the defendant.); Daugherty v. City of El Paso, 56 F.3d 695, 699-700 (5th Cir.1995) (undue hardship to require employer to make fundamental alteration in policy, upon which other employees relied, of filling vacancies with full-time employees, rather than part-time employees like plaintiff, in order to accommodate disabled employee.

Thus, a function could be essential to the employer while not commanding extra pay and being devoid of prestige, challenge, or other objective value, the loss of which could constitute a constructive demotion. 14 See Rizzo II, 173 F.3d at 272-73 (Wiener, J., dissenting) (citing Daugherty v. City of El Paso, 56 F.3d 695, 697-98 (5th Cir. 1995)). 15 The ADA defers to an employer's determinations of the essential functions of a job.

Corp., 90 F.3d 1173, 1187 (6th Cir. 1996); White, 45 F.3d at 362 ; Daugherty v. City of El Paso, 56 F.3d 695, 700 (5th Cir. 1995), cert. denied, 516 U.S. 1172 (1996).

Consistent with our holding, the Eighth Circuit in Huber v. Wal-Mart Stores, 486 F.3d 480, 483 (8th Cir. 2007) also concluded that the ADA “is not an affirmative action statute” and “only re *1347 quires [the employer] to allow [the disabled employee] to compete for the job, but does not require ■ [the employer] to turn away a superior, applicant.” See also Daugherty v. City of El Paso, 56 F.3d 695, 700 (5th Cir. 1995) (holding that the ADA does not require disabled persons …

In other words, USPS was not required to “exempt [Wade] from performance of an essential function of the job,” Jones v. Kerrville State Hosp., 142 F.3d 263 , 265 (5th Cir.1998), to “find or create a new job” for her, Daugherty v. City of El Paso, 56 F.3d 695, 700 (5th Cir.1995), or to disadvantage other employees as a result of her reassignment, Turco v. Hoechst Celanese Corp., 101 F.3d 1090, 1094 (5th Cir.1996).

See 42 U.S.C. § 12111 (9) ("The term ‘reasonable accommodation' may include ... reassignment to a vacant position" (emphasis added)); Daugherty v. City of El Paso, 56 F.3d 695, 698-99 (5th Cir. 1995). 5 .

Daugherty v. City of El Paso, 56 F.3d 695, 700 (5th Cir.1995), cert. denied, 516 U.S. 1172 , 116 S.Ct. 1263 , 134 L.Ed.2d 211 (1996).

Daugherty v. City of El Paso, 56 F.3d 695, 700 (5th Cir.1995), cert. denied, 516 U.S. 1172 , 116 S.Ct. 1263 , 134 L.Ed.2d 211 (1996).

It merely prohibits employment discrimination against qualified individuals with disabilities, no more and no less." Turco, 101 F.3d at 1094 (citing Daugherty v. City of El Paso, 56 F.3d 695, 700 (5th Cir.1995)). 20 In its amicus brief, the EEOC argues P & G should have reassigned Rehrs to a vacant, comparable position as an alternative accommodation.

It merely prohibits employment discrimination against qualified individuals with disabilities, no more and no less.” Turco, 101 F.3d at 1094 (citing Daugherty v. City of El Paso, 56 F.3d 695, 700 (5th Cir. 1995)).

It merely prohibits employment discrimination against qualified individuals with disabilities, no more and no less.” Turco, 101 F.3d at 1094 (citing Daugherty v. City of El Paso, 56 F.3d 695, 700 (5th Cir.1995)).

E.g., Burns, 222 F.3d at 258 (quoting Dalton, 141 F.3d at 679 )(“Allowing Burns to recover despite his failure to abide by KCC’s non-discriminatory policy requiring him to apply for a transfer to a new position within his restrictions would ‘convert a nondiscrimination statute into a mandatory preference statute, a result which would be inconsistent with the nondiscriminatory aims of the ADA.’ ”); Daugherty v. City of El Paso, 56 F.3d 695, 700 (5th Cir.l995)(“we do not read …

Kline, of El Paso, 56 F.3d 695, 700 (5th Cir. 1995)(“we do not read 128 F.3d at 348-49 ; Mitchell v. Toledo Hosp., 964 F.2d 577 , the ADA as requiring affirmative action in favor of 582 n. 4 (6th Cir. 1992). individuals with disabilities, in the sense of requiring that disabled persons be given priority in hiring or reassignment Moreover, like her ADA claim, the gist of Hedrick’s ADEA over those who are not disabled.

Id. at 1026-29 ; Daugherty v. City of El Paso, 56 F.3d 695, 700 (5th Cir. 1995); see also Williams v. United Insurance Co. of America, 253 F.3d 280, 282 (7th Cir. 2001).

Id. at 1026-29 ; Daugherty v. City of El Paso, 56 F.3d 695, 700 (5th Cir.1995); see also Williams v. United Insurance Co. of America, 253 F.3d 280, 282 (7th Cir.2001).

It is not an affirmative action statute in the sense of requiring an employer to give preferential treatment to a disabled employee merely on account of the employee’s disability, EEOC v. Humiston-Keeling, Inc., supra, 227 F.3d at 1028-29 ; Malabarba v. Chicago Tribune Co., supra, 149 F.3d at 700 ; Matthews v. Commonwealth Edison Co., supra, 128 F.3d at 1196 ; EEOC v. Sara Lee Corp., supra, 237 F.3d at 355 ; Daugherty v. City of El Paso, 56 F.3d 695, 700 (5th Cir.1995), thou…

It is not an affirmative action statute in the sense of requiring an employer to give preferential treatment to a disabled employee merely on account of the employee’s disability, EEOC v. Humiston- Keeling, Inc., supra, 227 F.3d at 1028 - 29; Malabarba v. Chicago Tribune Co., supra, 149 F.3d at 700 ; Matthews v. Commonwealth Edison Co., supra, 128 F.3d at 1196 ; EEOC v. Sara Lee Corp., supra, 237 F.3d at 355 ; Daugherty v. City of El Paso, 56 F.3d 695, 700 (5th Cir. 1995), t…

Cir. 1998) (en banc) ("An employer is not required to reassign a disabled employee in circumstances when such a transfer would violate a legit- imate, nondiscriminatory policy of the employer.") (internal quota- tions omitted); Duckett v. Dunlop Tire Corp., 120 F.3d 1222, 1225 (11th Cir. 1997) (per curiam) ("We are aware of no case under either the ADA or the Rehabilitation Act where an employer has been required to transfer an employee to another position where the employer…

See, e.g., Burns v. Coca-Cola Enterprises, 222 F.3d 247, 257 (6th Cir.2000) (“Employers are not required to ... violate other employees’ rights under a collective bargaining agreement or other nondiscriminatory policy in order to accommodate a disabled individual.”); Cravens v. Blue Cross and Blue Shield of Kansas City, 214 F.3d 1011, 1020 (8th Cir.2000) (“[T]he employer is generally not required to transfer a disabled employee if such reassignment would violate ... a legiti…

See Turco, 101 F.3d at 1094 (company “is not required to create light duty jobs to accommodate disabled employees”); Daugherty v. City of El Paso, 56 F.3d 695, 700 (5th Cir. 1995) (employer not required by ADA to find or create new job for disabled plaintiff).

See, e.g., Southeastern Community College v. Davis, 442 U.S. 897 , 407-12, 99 S.Ct. 2361 , 60 L.Ed.2d 980 (1979); Dalton v. Subaru-Isuzu Automotive, Inc., 141 F.3d 667, 669 (7th Cir.1998); Matthews v. Commonwealth Edison Co., supra, 128 F.3d at 1196 ; Eckles v. Consolidated Rail Corp., 94 F.3d 1041, 1051 (7th Cir.1996); Finnegan v. Trans World Airlines, Inc., 967 F.2d 1161, 1163 (7th Cir.1992); Terrell v. USAir, 132 F.3d 621, 627 (11th Cir.1998); Gaines v. Runyon, 107 F.3d 1…

Reserve Bank of N.Y., 91 F.3d 379, 384-385 (2d Cir.1996); Daugherty v. City of El Paso, 56 F.3d 695, 700 (5th Cir.1995) (noting “we do not read the ADA as requiring affirmative action in favor of individuals with disabilities, in the sense of requiring that disabled persons be given priority in hiring or reassignment over those who are not disabled.”); see also *769 Jackson v. FUJIFILM Mfg.

Judge Edmondson’s opinion in Terrell supra is so pertinent to this particular point that it bears repeating: “The ADA was never intended to turn nondiscrimination into discrimination.” Cf. Daugherty v. City of El Paso, 56 F.3d 695, 700 (5th Cir.1995) (“Even viewing all the disputed evidence in favor of [the plaintiff], his ADA claim must fail because he did not show that he was treated differently from any other part-time employee whose job was eliminated....

Siefken v. Village of Arlington Heights, 65 F.3d 664, 667 (7th Cir. 1995); Daughterty v. City of El Paso, 56 F.3d 695, 698 (5th Cir. 1995); accord Lipp v. Cargill Meat Sol.

Pa. Sept. 1, 2000)). those who are not disabled.” (alteration in original) (quoting Daughterty v. City of El Paso, 56 F.3d 695, 700 (5th Cir. 1995))). 3.

Daughtery v. City of El Paso, 56 F.3d 695, 700 (5th Cir. 1995).

Grp., Inc., 101 F.3d 1090, 1094 (5th Cir. 1996)); see also Daugherty v. City of El Paso, 56 F.3d 695 (5th Cir. 1995) (“Nor is the [employer] required to find . . . a new job for [plaintiff]. . . .”).

See Hedrick, 355 F.3d at 459 (“Finally, contrary to Hedrick's argument, her disability did not provide her with a preference in WRCS's hiring practices.”); see also Terrell v. USAir, 132 F.3d 621, 627 (11th Cir. 1998) (“We cannot accept that Congress, in enacting the ADA, intended to grant preferential treatment for disabled workers.”); Daugherty v. City of El Paso, 56 F.3d 695, 700 (5th Cir. 1995) (“[W]e do not read the ADA as 19 This particular policy provision is very sig…

Daugherty v. City of El Paso, 56 F.3d 695, 700 (5th Cir. 1995); see also Wernick, 91 F.3d at 385 .

A “qualified individual with a disability” means “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.” Daugherty v. City of EI Paso, 56 F.3d 695, 696 (5th Cir. 1995), holding modified by Kapche v. City of San Antonio, 304 F.3d 493 (5th Cir. 2002) (citing 42 U.S.C. § 12111 (8)).

BNSF’s qualification argument is twofold: (1) “employees who used certain medications, including opioids, [are] no longer [] qualified to work in roles involving safety-sensitive duties[,]” Mot. 19, ECF No. 31; and (2) “to be ‘qualified,’ an employee must be able to safely perform the duties of his or her employment.” Id. at 20 (citing Turco v. Hoechst Celanese Corp., 101 F.3d 1090, 1094 (5th Cir. 1996); Daugherty v. City of El Paso, 56 F.3d 695, 698 (5th Cir. 1995); Goode v…

While the ADA does not require employers to give disabled individuals “priority in hiring or reassignment over those who are not disabled,” , 56 F.3d 695, 700 (5th Cir. 1995), it does require employers to allow disabled individuals to “compete equally” for vacant roles. , No. 3:15-CV-3104- G, 2017 WL 930923 , at *2 (N.D.

Daugherty v. City of El Paso, 56 F.3d 695, 696 (5th Cir. 1995); 42 U.S.C. § 12112 (a).

First, the employee must, “with or without reasonable accommodation, [be able to] perform the essential functions of the employment position to which [he or] she seeks reassignment.” Aka, 156 F.3d at 1301 (citing Daugherty v. City of El Paso, 56 F.3d 695, 698-99 (5th Cir. 1995) (addressing the standard in an ADA case, which has identical standards to the Rehabilitation Act, see supra note 11)).

See Holtzclaw v. DSC Communications Corporation, 255 F.3d 254, 260 (5th Cir. 2001) (“Because, in regard to other types of discrimination claims, including other ADEA claims, we consistently have required that a plaintiff be qualified for the job he seeks.”); Daugherty v. City of El Paso, 56 F.3d 695, 698-99 (5th Cir. 1995), cert. denied, 516 U.S. 1172 , 116 S.Ct. 1263 , 134 L.Ed.2d 211 (1996).

City Dep’t of Prob., 348 Fed.Appx. 643 , 645 (2d Cir.2009) (citing 42 U.S.C. § 12111 (9)), “the employer need not find or create a position for the employee,” id. (citing Daugherty v. City of El Paso, 56 F.3d 695, 700 (5th Cir.1995), cert. denied, 516 U.S. 1172 , 116 S.Ct. 1263 , 134 L.Ed.2d 211 (1996)).

It merely prohibits employment discrimination against qualified individuals with disabilities, no more and no less.” Turco, 101 F.3d at 1094 (citing Daugherty v. City of El Paso, 56 F.3d 695, 700 (5th Cir.1995)).

DSI cites to Daugherty v. City of El Paso, where an insulin-dependent diabetic was found unqualified for the position of city bus driver. 56 F.3d 695, 698 (5th Cir.1995).

(D.E. 18 at 7.) Under the ADA, a “qualified individual with a disability” is “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. § 12112 (a); § 12111(8); Daugherty v. City of El Paso, 56 F.3d 695, 696 (5th Cir.1995), cert. denied, 516 U.S. 1172 , 116 S.Ct. 1263 , 134 L.Ed.2d 211 (1996).

Tex. 1995); Daugherty v. El Paso, 56 F.3d 695, 698 (5th Cir. 1995) (“Woe unto the employer who put such an employee behind the wheel of a vehicle owned by the employer which was involved in a vehicular accident”).

Furthermore, an employer is not obligated to implement “an accommodation that would result in other employees having to work harder or longer.” Turco, 101 F.3d at 1094 ; see Kralik v. Durbin, 130 F.3d 76, 79 (3d Cir.1997); Daugherty v. City of El Paso, 56 F.3d 695, 700 (5th Cir.1995), cert. denied, 516 U.S. 1172 , 116 S.Ct. 1263 , 134 L.Ed.2d 211 (1996); Milton v. Scrivner, Inc., 53 F.3d 1118, 1125 (10th Cir.1995).

For example, the Fifth Circuit Court of Appeals briefly discussed, and upheld, a “blanket exclusion” for diabetic police officers in Gonzales v. City of New Braunfels, Tex., 176 F.3d 834 (5th Cir.1999), as follows: [W]e observe that, under the current law in this circuit, a driver with insulin-dependent diabetes poses a direct threat to the health and safety of others as a matter of law. [See Chandler v. City of Dallas, 2 F.3d 1385, 1395 (5th Cir.1993); Daugherty v. City of …

See Dalton, 141 F.3d at 679 (“[W]e have been unable to find a single ADA or Rehabilitation Act case in which an employer has been required to reassign a disabled employee to a position when such transfer would violate a legitimate, nondiscriminatory policy of the employer, ..., and for good reason.”); Daugherty v. City of El Paso, 56 F.3d 695, 700 (5th Cir.1995) (ADA does not mandate a policy of “affirmative action in favor of individuals with disabilities, in the sense of r…

It prohibits employment discrimination against qualified individuals with disabilities, no more and no less.” Daugherty v. City of El Paso, 56 F.3d 695, 700 (5th Cir.1995).

Further, “the ADA does not mandate a policy of ‘affirmative action in favor of individuals with disabilities, in the sense of requiring that disabled person [sic] be given priority in hiring or reassignment over those who are not disabled.’ ” Malabarba v. Chicago Tribune Co., 149 F.3d 690, 700 (7th Cir.1998) (quoting Daugherty v. City of El Paso, 56 F.3d 695, 700 (5th Cir.1995)).

“The ADA seeks only to provide qualified disabled employees with opportunities equal to their non-disabled co-workers; it does not demand that employers give disabled employees priority in hiring and reassignment over non-disabled employees.” See Schwertfager v. City of Boynton Beach, 42 F.Supp.2d 1347, 1363 (S.D.Fla. 1999) (citing Daugherty v. City of El Paso, 56 F.3d 695, 700 (5th Cir.1995)).

See Berg, 163 F.3d at 1255 (finding that plaintiffs claim failed in part because he did not establish that he had been treated differently from anyone else); Terrell v. USAir, 132 F.3d 621, 627 (11th Cir.1998) (citing with approval language from Daugherty v. El Paso, 56 F.3d 695, 700 (5th Cir.1995), which held that plaintiffs ADA claim failed because he could not show that he had been treated differently from other employees).

See, e.g., Senner v. North-central Technical College, 113 F.3d 750, 756-57 (7th Cir.1997); Daugherty v. City of El Paso, 56 F.3d 695, 699 (5th Cir.1995).