                              In the

United States Court of Appeals
               For the Seventh Circuit

No. 11-1774

E QUAL E MPLOYMENT O PPORTUNITY C OMMISSION,

                                                  Plaintiff-Appellant,
                                  v.

U NITED A IRLINES, INC.,
                                                 Defendant-Appellee.


             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
          No. 10-cv-01699—Harry D. Leinenweber, Judge.



   A RGUED O CTOBER 20, 2011—D ECIDED S EPTEMBER 7, 2012




  Before C UDAHY, K ANNE, and SYKES, Circuit Judges.
  C UDAHY , Circuit Judge. First, the procedural posture
of this case requires brief discussion. An earlier version
of this opinion suggested that rehearing en banc was
warranted for the full court to consider overruling
EEOC v. Humiston-Keeling, 227 F.3d 1024 (7th Cir. 2000), in
light of U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002). The
EEOC then petitioned for rehearing en banc, and United
Airlines, Inc. filed a response. Thereafter, every member
2                                            No. 11-1774

of the court in active service approved overruling
Humiston-Keeling and it was suggested that the panel use
Circuit Rule 40(e) for that purpose. However, the usual
formal en banc procedure involving argument to the
full court was not pursued. We vacate the original
panel opinion and now issue this opinion overruling
Humiston-Keeling. We have circulated the new panel
opinion to the full court under Rule 40(e), and no
member of the court has asked to rehear the case en banc.
With that procedural explanation, we now proceed to the
merits.
  In this case, the Equal Employment Opportunity Com-
mission (EEOC) asks this court to change its interpreta-
tion of the Americans with Disabilities Act, 42 U.S.C.
§§ 12101 et seq. (ADA). The case turns on the meaning
of the word “reassignment.” The ADA includes “reas-
signment to a vacant position” as a possible “reasonable
accommodation” for disabled employees. 42 U.S.C.
§ 12111(9). The EEOC contends that “reassignment” under
the ADA requires employers to appoint employees who
are losing their current positions due to disability to a
vacant position for which they are qualified. However,
this court has already held in Humiston-Keeling, 227 F.3d
at 1029, that the ADA has no such requirement. The
EEOC argues that the Supreme Court’s ruling in Barnett,
535 U.S. at 391, undermines Humiston-Keeling. Several
courts in this circuit have relied on Humiston-Keeling in
post-Barnett opinions, though it appears that these
courts did not conduct a detailed analysis of Humiston-
Keeling’s continued vitality. The present case offers us
the opportunity to correct this continuing error in our
No. 11-1774                                             3

jurisprudence. While we understand that this may be a
close question, we now make clear that Humiston-
Keeling did not survive Barnett. We reverse and hold
that the ADA does indeed mandate that an employer
appoint employees with disabilities to vacant positions
for which they are qualified, provided that such accom-
modations would be ordinarily reasonable and would
not present an undue hardship to that employer. We
remand with instructions that the district court
determine if mandatory reassignment would be rea-
sonable in the run of cases and if there are fact-specific
considerations particular to United’s employment system
that would render mandatory reassignment unreasonable
in this case.
  In 2003, United Airlines set out Reasonable Accom-
modation Guidelines that address accommodating em-
ployees who, because of disability, can no longer do the
essential functions of their current jobs even with rea-
sonable accommodation. While the guidelines note that
“transfer . . . [to] an equivalent or lower-level vacant
position” may be a reasonable accommodation, the guide-
lines specify that the transfer process is competitive.
Accordingly, employees needing accommodation will
not be automatically placed into vacant positions but
instead will be given preferential treatment. This allows
employees needing accommodation to submit an unlim-
ited number of transfer applications, be guaranteed an
interview and receive priority consideration over a simi-
larly qualified applicant—that is, if two candidates
are equally qualified, the employee-applicant seeking
accommodation will get the job.
4                                               No. 11-1774

  The EEOC filed suit in San Francisco, alleging that
United’s policy violates the ADA. The district court
granted United’s motion to transfer the case to Illinois.
That district court granted United’s motion to dismiss
the suit under Rule 12(b)(6). The court noted that binding
precedent, Humiston-Keeling, 227 F.3d at 1028-29, held
that a competitive transfer policy does not violate the
ADA. The court also rejected the EEOC’s contention
that the Supreme Court’s decision in Barnett undermined
Humiston-Keeling.
  We review a dismissal under Rule 12(b)(6) de novo.
Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008). A
complaint must provide “sufficient factual matter, ac-
cepted as true, to ‘state a claim to relief that is plausible
on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)). This court construes the complaint “in the light
most favorable to the plaintiff, accepting as true all well-
pleaded facts alleged, and drawing all possible inferences
in [the EEOC’s] favor.” Tamayo, 526 F.3d at 1081 (citing
Killingsworth v. HSBC Bank Nev., 507 F.3d 614, 618 (7th
Cir. 2007)). We have jurisdiction to hear EEOC’s appeal
under 28 U.S.C. § 1291.
  The district court noted that Humiston-Keeling is directly
on point and has not been overruled by the Seventh
Circuit. The district court is correct on both points.
Humiston-Keeling involved a worker, Houser, who could
no longer perform her conveyor job due to an injured
arm. 227 F.3d at 1026. After taking a temporary greeter
position, Houser applied for vacant clerical positions
No. 11-1774                                              5

within the company but did not get any of these jobs. Id.
The EEOC brought suit, arguing the “reassignment form
of reasonable accommodation . . . require[s] that the
disabled person be advanced over a more qualified
nondisabled person, provided only that the disabled
person is at least minimally qualified to do the job,
unless the employer can show undue hardship.” Id. at
1027 (internal quotation marks omitted). This court
rejected that assertion, holding the “ADA does not
require an employer to reassign a disabled employee to
a job for which there is a better applicant, provided it’s
the employer’s consistent and honest policy to hire
the best applicant for the particular job in question.” Id.
at 1029.
  The EEOC invites this court to overturn Humiston-
Keeling, arguing that Barnett undercuts the reasoning
of Humiston-Keeling. In Barnett, the Supreme Court consid-
ered reassignment under the ADA in the context of a
seniority system. 535 U.S. at 393-95. Robert Barnett
injured his back while working as a cargo-handler for
U.S. Airways. Id. at 394. He invoked seniority, not his
disability status, and transferred to a mailroom position.
Id. Later, at least two employees senior to Barnett
intended to bid for the mailroom position. Id. Barnett
argued he should be allowed to keep this position
and claimed his reassignment was a reasonable accom-
modation mandated by the ADA because he was an
individual with a disability capable of performing the
essential functions of the mailroom job. Id. at 394-95.
  The Supreme Court first noted that “[t]he simple fact
that an accommodation would provide a ‘preference’—in
6                                                   No. 11-1774

the sense that it would permit the worker with a disability
to violate a rule that others must obey—cannot, in and
of itself, automatically show that the accommodation
is not ‘reasonable.’ ” Id. at 398 (emphasis in original).
Instead, the Court outlined a two-step, case-specific
approach. The “plaintiff/employee . . . need only show
that an ‘accommodation’ seems reasonable on its face,
i.e., ordinarily or in the run of cases.” Id. at 401. Once
the plaintiff has shown he seeks a reasonable method
of accommodation, the burden shifts to the defen-
dant/employer to “show special (typically case-specific)
circumstances that demonstrate undue hardship in the
particular circumstances.” Id. at 402. 1 While Barnett’s


1
  A helpful summary of the Barnett framework is provided in
Shapiro v. Township of Lakewood, 292 F.3d 356, 361 (3d Cir. 2002):
    It therefore appears that the Court has prescribed the
    following two-step approach for cases in which a re-
    quested accommodation in the form of a job reassignment
    is claimed to violate a disability-neutral rule of the em-
    ployer. The first step requires the employee to show that
    the accommodation is a type that is reasonable in the run
    of cases. The second step varies depending on the out-
    come of the first step. If the accommodation is shown to
    be a type of accommodation that is reasonable in the run
    of cases, the burden shifts to the employer to show that
    granting the accommodation would impose an undue
    hardship under the particular circumstances of the case.
    On the other hand, if the accommodation is not shown to
    be a type of accommodation that is reasonable in the run
    of cases, the employee can still prevail by showing that
                                                   (continued...)
No. 11-1774                                                7

request for assignment to the mailroom was a “reasonable
accommodation” within the meaning of the statute, the
violation of a seniority system “would not be reasonable in
the run of cases.” Id. at 403. An “employer’s showing of
violation of the rules of a seniority system is by itself
ordinarily sufficient” to demonstrate that the accom-
modation sought is unreasonable. Id. at 405. However,
the Court was careful to point out that it was not creating
a per se exception for seniority systems, since “[t]he
plaintiff . . . nonetheless remains free to show that
special circumstances warrant a finding that, despite
the presence of a seniority system (which the ADA may
not trump in the run of cases), the requested ‘accommoda-
tion’ is ‘reasonable’ on the particular facts.” Id.
  The EEOC points out that U.S. Airways relied heavily
on Humiston-Keeling and, more importantly, that the
Barnett Court flatly contradicted much of the language
of Humiston-Keeling. U.S. Airways argued that it was not
required to grant a requested accommodation that
would violate a disability-neutral rule, using the argu-
ment from Humiston-Keeling that the ADA is “not a man-
datory preference act” but only a “nondiscrimination
statute.” 227 F.3d at 1028. The Barnett Court rejected
this anti-preference interpretation of the ADA, noting
that this argument “fails to recognize what the Act speci-



(...continued)
    special circumstances warrant a finding that the accom-
    modation is reasonable under the particular circumstances
    of the case.
8                                              No. 11-1774

fies, namely, that preferences will sometimes prove
necessary to achieve the Act’s basic equal opportunity
goal.” 535 U.S. at 397. Merely following a “neutral rule”
did not allow U.S. Airways to claim an “automatic ex-
emption” from the accommodation requirement of the
Act. Id. at 398. Instead, U.S. Airways prevailed because
its situation satisfied a much narrower, fact-specific
exception based on the hardship that could be imposed
on an employer utilizing a seniority system. Id. at 405.
   The analysis of Barnett’s impact on Humiston-Keeling
is further complicated by the fact that we are not the
first panel to consider this issue. This court considered
Barnett’s relationship to Humiston-Keeling, albeit in an
abbreviated fashion and without the benefit of briefing,
in Mays v. Principi, 301 F.3d 866 (7th Cir. 2002). In Mays,
this court relied on Humiston-Keeling in finding that
an employer did not violate the duty of reasonable ac-
commodation in the Rehabilitation Act of 1973, 29 U.S.C.
§§ 701 et seq., by giving an administrative nursing
position to a better qualified applicant, rather than to a
disabled employee needing reassignment.2 Mays, 301
F.3d at 871-72. The Mays Court interpreted the
recently handed down Barnett decision actually to
bolster Humiston-Keeling by equating seniority systems
with any other normal method of filling vacancies. Id.
at 872.
     [Barnett] holds that an employer is not required to
    give a disabled employee superseniority to enable


2
  Instead, the employer placed the disabled employee in a
clerical position.
No. 11-1774                                              9

    him to retain his job when a more senior employee
    invokes an entitlement to it conferred by the em-
    ployer’s seniority system. If for “more senior” we
    read “better qualified,” for “seniority system”
    we read “the employer’s normal method of filling
    vacancies,” and for “superseniority” we read “a
    break,” U.S. Airways becomes our case.
Id. at 872 (internal citation omitted).
  The EEOC argues, and we agree, that the Mays Court
incorrectly asserted that a best-qualified selection policy
is essentially the same as a seniority system. In equating
the two, the Mays Court so enlarged the narrow, fact-
specific exception set out in Barnett as to swallow the
rule. While employers may prefer to hire the best
qualified applicant, the violation of a best-qualified
selection policy does not involve the property-rights
and administrative concerns (and resulting burdens)
presented by the violation of a seniority policy. To
strengthen this critique, the EEOC points out the
relative rarity of seniority systems and the distinct chal-
lenges of mandating reassignment in a system where
employees are already entitled to particular positions
based on years of employment.
  The Supreme Court has found that accommodation
through appointment to a vacant position is reasonable.
Absent a showing of undue hardship, an employer
must implement such a reassignment policy. The Mays
Court understandably erred in suggesting that devia-
tion from a best-qualified selection policy always repre-
sented such a hardship.
10                                                 No. 11-1774

  In any event, the Barnett framework does not contain
categorical exceptions. On remand, the district court
must conduct the Barnett analysis. In this case, the
district court must first consider (under Barnett step one)
if mandatory reassignment is ordinarily, in the run
of cases, a reasonable accommodation.3 Assuming that
the district court finds that mandatory reassignment
is ordinarily reasonable, the district must then deter-
mine (under Barnett step two) if there are fact-specific
considerations particular to United’s employment system
that would create an undue hardship and render manda-
tory reassignment unreasonable.
  For its part, United argues that this court should not
abandon Humiston-Keeling, in part because the Eighth
Circuit explicitly adopted the reasoning of Humiston-
Keeling in Huber v. Wal-Mart, 486 F.3d 480, 483-84 (8th
Cir. 2007), reh’g en banc denied, 493 F.3d 1002 (8th Cir. 2007),



3
  We do not believe this step will cause the district court any
great difficulty. This is the very accommodation analyzed in
Barnett. There, the Supreme Court “assume[d] that normally
such a request would be reasonable within the meaning of the
statute, were it not for one circumstance, namely, that the
assignment would violate the rules of a seniority system.” 535
U.S. at 403. There is no seniority system at issue here. How-
ever, we suppose it is possible there is some comparable
circumstance of which we are unaware. We note for complete-
ness that if mandatory reassignment is not ordinarily a rea-
sonable accommodation, the EEOC can still prevail if it
shows that special factors make mandatory reassignment
reasonable in this case.
No. 11-1774                                               11

cert. granted in part, 552 U.S. 1074 (2007), cert. dismissed,
552 U.S. 1136 (2008). The Eighth Circuit’s wholesale
adoption of Humiston-Keeling has little import. The opin-
ion adopts Humiston-Keeling without analysis, much
less an analysis of Humiston-Keeling in the context of
Barnett.4 Two of our sister Circuits have already deter-
mined that the ADA requires employers to appoint
disabled employees to vacant positions, provided that
such accommodations would not create an undue hard-
ship (or run afoul of a collective bargaining agreement):
the Tenth in Smith v. Midland Brake, Inc., 180 F.3d 1154
(10th Cir. 1999) (en banc) and the D.C. in Aka v.
Washington Hospital Center, 156 F.3d 1284 (D.C. Cir. 1998)
(en banc). We feel that in light of Barnett, pursuant to
Circuit Rule 40(e) as suggested under the procedure
described above, we must adopt a similar approach.
  For the foregoing reasons, the judgment of the district
court is R EVERSED and we R EMAND this matter to the
district court for further consideration consistent with
this opinion.




4
  It is also worth noting that the Supreme Court granted
certiorari in Huber, but the parties settled and the Supreme
Court dismissed the case. 552 U.S. 1136 (2008).


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