                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                  June 17, 2009
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                            FOR THE TENTH CIRCUIT




    MICHELLE IVERSON,

                Plaintiff-Appellant,
                                                        No. 08-3264
    v.                                         (D.C. No. 2:07-CV-02304-JWL)
                                                          (D. Kan.)
    CITY OF SHAWNEE, KANSAS,

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before O’BRIEN, Circuit Judge, BRORBY, Senior Circuit Judge, and
GORSUCH, Circuit Judge.



         While employed as a police officer by the City of Shawnee, Kansas (City)

Michelle Iverson was injured. When it became clear she could not return to her

job she sought reassignment to a vacant position with the City. Claiming the City

failed to reasonably accommodate her disability by transferring her to a vacant



*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
position she brought an action against the City, grounded on the Americans with

Disabilities Act (ADA). The district court determined the City did not engage in

an interactive process, as required, in order to accommodate her request for a

transfer to a vacant position. Nevertheless, it entered summary judgment for the

City because Iverson presented no evidence indicating an appropriate vacant

position existed with the City. Iverson maintains, as she argued to the district

court, that an employer must engage in the interactive process even in the absence

of any evidence of a vacant position. We affirm the summary judgment entered

by the district court. 1

                                  I. Claims Raised

       According to Iverson’s complaint: she suffered a back injury while on duty

in early February 2005; her injury was exacerbated at the end of May 2005 while

she was extracting a victim from an automobile accident and she underwent spinal

fusion surgery in an effort to obtain relief; despite the surgery, she was unable to

pass the firearms re-qualification test required of all law enforcement officers in

Kansas; she requested accommodation by a transfer to an open detective position

and “also inquired about the possibility of other police officer assignments or

other non-officer jobs but was told by Defendant’s agents there were no jobs

available.” Aplt. App., Vol. I at A5. Finally she claims she “could have

performed numerous positions within the [City] with or without reasonable

1
       Our jurisdiction derives from 28 U.S.C. § 1291.

                                         -2-
accommodation.” Id. Moveover, “there was no attempt by the city to evaluate

her condition, provide her with a reasonable accommodation or engage in a

good-faith interactive dialogue about continuing her employment with the City.”

Id. Following completion of discovery a pretrial conference was held. According

to the pretrial order (which superceded the pleadings) Iverson contended the

City failed to provide a reasonable accommodation and that “[a]ssuming that she

could not be accommodated in the job classification of police officer, there were

numerous other positions both within the police department or other city

departments that she could be transferred to as a reasonable accommodation,

i.e. detective, records technician, police dispatcher, and clerical or administrative

positions within the City.” 2 Aplee. Supp. App. at AA4.

                               II. Standard of Review

              We review the grant of summary judgment de novo and apply
      the same standard as the district court. Rule 56(c) of the Federal
      Rules of Civil Procedure instructs that summary judgment is
      appropriate if there is no genuine issue as to any material fact and
      . . . the movant is entitled to judgment as a matter of law. In making
      this determination, we examine the record and all reasonable
      inferences that might be drawn from it in the light most favorable to
      the non-moving party. The mere existence of some alleged factual
      dispute between the parties will not defeat an otherwise properly
      supported motion for summary judgment; the requirement is that
      there be no genuine issue of material fact. A complete failure of
      proof concerning an essential element of the nonmoving party’s case
      necessarily renders all other facts immaterial. However, we caution


2
      We assume, arguendo, the City was required to consider jobs anywhere in
City government, not just in the Police Department.

                                          -3-
      that mere conclusory allegations are insufficient to establish an issue
      of fact under Fed. R. Civ. P. 56.

Barber ex rel. Barber v. Colo. Dep’t of Rev., 562 F.3d 1222, 1227-28 (10th Cir.

2009) (quotations, citations, and alterations omitted).

                                    III. Analysis

       As discussed in detail in our decision in Smith v. Midland Brake, Inc.,

under Title I of the ADA, “‘[n]o covered entity shall discriminate against a

qualified individual with a disability because of the disability of such individual

in regard to . . . discharge of employees.’” 180 F.3d 1154, 1160-61 (10th Cir.

199) (quoting 42 U.S.C. § 12112(a)) (emphasis in original). The term

“discriminate” includes failing to make “reasonable accommodations” to the

limitations of the disabled employee, id. at 1161 (quoting 42 U.S.C.

§ 12112(b)(5)(A) (emphasis omitted), and the term “reasonable accommodations”

may include “reassignment to a vacant position,” id. (quoting 42 U.S.C.

§ 12111(9)) (emphasis omitted).

      Under the “familiar burden shifting approach set forth in McDonnell

Douglas Corp. v. Green,” “[t]o survive summary judgment on an ADA claim of

failure to accommodate by offering reassignment to a vacant position, the

employee initially bears the burden of production with respect to a prima facie

case.” Midland Brake, Inc., 180 F.3d at 1178-79. We further explained:

      For the employee to make such a prima facie case, he or she must
      make an initial showing that:

                                         -4-
               (1) The employee is a disabled person within the meaning of
               the ADA and has made any resulting limitations from his or
               her disability known to the employer;

               (2) The preferred option of accommodation within the
               employee’s existing job cannot reasonably be accomplished.

               (3) The employee requested the employer reasonably to
               accommodate his or her disability by reassignment to a vacant
               position, which the employee may identify at the outset or
               which the employee may request the employer identify through
               an interactive process, in which the employee in good faith
               was willing to, or did, cooperate;

               (4) The employee was qualified, with or without reasonable
               accommodation, to perform one or more appropriate vacant
               jobs within the company that the employee must, at the time of
               the summary judgment proceeding, specifically identify and
               show were available within the company at or about the time
               the request for reassignment was made; and

               (5) The employee suffered injury because the employer did not
               offer to reassign the employee to any appropriate vacant
               position.

Id. at 1179.

      The City, of course, supports the district court’s summary judgment,

because Iverson produced no evidence of specific jobs available within the police

department or any other department within the City. 3 Iverson claims, based on

Midland Brake, a defendant employer must implement the interactive process in

good faith in order to identify vacant positions to which the employee could be


3
      The City claims it engaged in the interactive process. In light of our
resolution of the issues we need not engage its argument.

                                          -5-
reassigned. She claims conflicting evidence with respect to the employer’s good

faith participation in the process prohibits summary judgment – the court need not

consider the availability of suitable vacant jobs. 4 But the law is now clear on the

point and it is contrary to her position.

      In Barber ex rel. Barber v. Colorado Department of Revenue, we explained

our “[p]rior cases establish that a disabled plaintiff alleging that an employer

failed to properly engage in the interactive process must also establish that the


4
      In support of her argument, Ms. Iverson directs us to the decision of the
United States District Court for the District of Colorado in Hines v. Chrysler
Corp., 231 F. Supp. 2d 1027 (D. Colo. 2002). In that case, the employee argued
that

      once [the court] determine[d] there [was] a genuine issue of material
      fact as to whether Chrysler participated in the interactive process in
      good faith, [the court had to] deny Chrysler’s motion for summary
      judgment, obviating any need to proceed to an analysis of the fourth
      prong of her prima facie case.

Id. at 1047. Chrysler, on the other hand, argued that

      even if it did not participate in the interactive process in good faith,
      [the court had to] proceed to an analysis of the fourth prong because
      [Chrysler was] still entitled to summary judgment if [the employee]
      cannot identify vacant positions which existed at the time she
      requested reassignment such that reassignment would have been
      possible.

Id. The district court concluded that, at that time, there was “support for both
positions” because this court had not yet “clearly articulated the consequences . . .
an employer suffers for failing to participate in the interactive process in good
faith.” Id.

      We have recently held otherwise.

                                            -6-
interactive process would have likely produced a reasonable accommodation.”

562 F.3d 1222, 1231 (10th Cir. 2009). “[T]his court held that a claimant alleging

that his employer failed adequately to partake of the interactive process required

by the ADA will lose on summary judgment if he fails to show ‘that a reasonable

accommodation was possible,’ and that the interactive process would have led to

an accommodation.” Id. (quoting Frazier v. Simmons, 254 F.3d 1247, 1261-62

(10th Cir. 2001)). Here, Iverson failed to produce any evidence showing she

“was qualified, with or without reasonable accommodation, to perform one or

more appropriate vacant jobs within the company” and failed “at the time of the

summary judgment proceeding, [to] specifically identify and show [vacant jobs]

were available within the company at or about the time the request for

reassignment was made.” Midland Brake, Inc., 180 F.3d at 1179. And she does

not now claim such evidence was presented. 5




5
       Although, as noted above, Ms. Iverson claimed in her complaint and the
pretrial order that there were numerous positions with the police department or
other departments that she could have been transferred to, there was no evidence
presented to support those claims. When she was questioned about the
availability of other jobs, she testified that she “believe[d]” she had been told by
her supervisor there were not any other positions open but that she “remember[ed]
looking at something . . . in city hall or codes or something” but that she didn’t
remember what it was, that it also might have been in “the Courts” but that she
did not remember and did not know if she could perform the job. Aplt. App.,
Vol. I at A67-A68.

                                         -7-
AFFIRMED.


                  Entered for the Court


                  Terrence L. O’Brien
                  Circuit Judge




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