                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 06-2238
                                   ___________

Pam Huber,                           *
                                     *
            Appellee,                *
                                     *
      v.                             * Appeal from the United States
                                     * District Court for the
Wal-Mart Stores, Inc.,               * Western District of Arkansas.
                                     *
            Appellant.               *
                                     *
___________________                  *
                                     *
Equal Employment Advisory Council; *
National Chamber Litigation Center,  *
                                     *
            Amici on behalf of       *
            Appellant.               *
                                 __________

                             Submitted: December 12, 2006
                                Filed: May 30, 2007
                                 ___________

Before WOLLMAN, BEAM, and RILEY, Circuit Judges.
                          ___________

RILEY, Circuit Judge.

       We are faced with an unanswered question: whether an employer who has an
established policy to fill vacant job positions with the most qualified applicant is
required to reassign a qualified disabled employee to a vacant position, although the
disabled employee is not the most qualified applicant for the position. Pam Huber
(Huber) brought an action against Wal-Mart Stores, Inc. (Wal-Mart), claiming
discrimination under the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C.
§§ 12101 to 12213, and the Arkansas Civil Rights Act of 1993 (ACRA), Ark. Code
Ann. §§ 16-123-101 to 16-123-108. The parties filed cross-motions for summary
judgment. The district court granted summary judgment in favor of Huber. Wal-Mart
appeals. For the reasons stated below, we reverse.

I.     BACKGROUND
       Huber worked for Wal-Mart as a dry grocery order filler earning $13.00 per
hour, including a $0.50 shift differential. While working for Wal-Mart, Huber
sustained a permanent injury to her right arm and hand. As a result, she could no
longer perform the essential functions of the order filler job. The parties stipulated
Huber’s injury is a disability under the ADA.

       Because of her disability, Huber sought, as a reasonable accommodation,
reassignment to a router position, which the parties stipulated was a vacant and
equivalent position under the ADA. Wal-Mart, however, did not agree to reassign
Huber automatically to the router position. Instead, pursuant to its policy of hiring the
most qualified applicant for the position, Wal-Mart required Huber to apply and
compete for the router position with other applicants. Ultimately, Wal-Mart filled the
job with a non-disabled applicant and denied Huber the router position. Wal-Mart
indicated, although Huber was qualified with or without an accommodation to
perform the duties of the router position, she was not the most qualified candidate.
The parties stipulated the individual hired for the router position was the most
qualified candidate.

       Wal-Mart later placed Huber at another facility in a maintenance associate
position (janitorial position), which paid $6.20 per hour. Huber continues to work in
that position and now earns $7.97 per hour.

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       Huber filed suit under the ADA, arguing she should have been reassigned to the
router position as a reasonable accommodation for her disability. Wal-Mart filed a
motion for summary judgment, contending it had a legitimate non-discriminatory
policy of hiring the most qualified applicant for all job vacancies and was not required
to reassign Huber to the router position. Huber filed a cross-motion for summary
judgment, and the district court granted Huber’s motion. Wal-Mart appeals.

II.    DISCUSSION
       We review de novo the district court’s grant of summary judgment. Fenney v.
Dakota, Minn. & E.R.R. Co., 327 F.3d 707, 711 (8th Cir. 2003). Summary judgment
is appropriate when the evidence and reasonable inferences, viewed in the light most
favorable to the non-moving party, show no genuine issue of material fact exists and
the moving party is entitled to judgment as a matter of law. Id.

        To make a prima facie case in a reasonable accommodation claim under the
ADA,1 the plaintiff must show she (1) has a disability within the meaning of the ADA,
(2) is a qualified individual, and (3) suffered an adverse employment action as a result
of the disability. Id. To be a qualified individual within the meaning of the ADA, an
employee must (1) possess the requisite skill, education, experience, and training for
her position; and (2) be able to perform the essential job functions, with or without a
reasonable accommodation. Id. at 712.

       Here, the parties do not dispute Huber (1) has a disability under the ADA,
(2) suffered an adverse employment action, or (3) possessed the requisite skills for the
router position. The parties’ only dispute is whether the ADA requires an employer,
as a reasonable accommodation, to give a current disabled employee preference in


      1
       “[W]e analyze a disability claim presented under the ACRA using the same
principles employed in analyzing claims under the [ADA].” Duty v. Norton-Alcoa
Proppants, 293 F.3d 481, 490 (8th Cir. 2002).

                                          -3-
filling a vacant position when the employee is able to perform the job duties, but is not
the most qualified candidate.

      The ADA states the scope of reasonable accommodation may include:

      [J]ob restructuring, part-time or modified work schedules, reassignment
      to a vacant position, acquisition or modification of equipment or devices,
      appropriate adjustment or modifications of examinations, training
      materials or policies, the provision of qualified readers or interpreters,
      and other similar accommodations for individuals with disabilities.

42 U.S.C. § 12111(9)(B) (emphasis added).

       Huber contends Wal-Mart, as a reasonable accommodation, should have
automatically reassigned her to the vacant router position without requiring her to
compete with other applicants for that position. Wal-Mart disagrees, citing its non-
discriminatory policy to hire the most qualified applicant. Wal-Mart argues that,
under the ADA, Huber was not entitled to be reassigned automatically to the router
position without first competing with other applicants. This is a question of first
impression in our circuit. As the district court noted, other circuits differ with respect
to the meaning of the reassignment language under the ADA.

      The Tenth Circuit in Smith v. Midland Brake, Inc., 180 F.3d 1154, 1164-65
(10th Cir. 1999) (en banc), stated:

      [I]f the reassignment language merely requires employers to consider on
      an equal basis with all other applicants an otherwise qualified existing
      employee with a disability for reassignment to a vacant position, that
      language would add nothing to the obligation not to discriminate, and
      would thereby be redundant. . . .




                                           -4-
             Thus, the reassignment obligation must mean something more
      than merely allowing a disabled person to compete equally with the rest
      of the world for a vacant position.

In the Tenth Circuit, reassignment under the ADA results in automatically awarding
a position to a qualified disabled employee regardless whether other better qualified
applicants are available, and despite an employer’s policy to hire the best applicant.2

      On the other hand, the Seventh Circuit in EEOC v. Humiston-Keeling, Inc., 227
F.3d 1024, 1027-28 (7th Cir. 2000), explained:

      The reassignment provision makes clear that the employer must also
      consider the feasibility of assigning the worker to a different job in
      which his disability will not be an impediment to full performance, and
      if the reassignment is feasible and does not require the employer to turn
      away a superior applicant, the reassignment is mandatory.

In the Seventh Circuit, ADA reassignment does not require an employer to reassign
a qualified disabled employee to a job for which there is a more qualified applicant,
if the employer has a policy to hire the most qualified applicant.

      Wal-Mart urges this court to adopt the Seventh Circuit’s approach and to
conclude (1) Huber was not entitled, as a reasonable accommodation, to be reassigned
automatically to the router position, and (2) the ADA only requires Wal-Mart to allow
Huber to compete for the job, but does not require Wal-Mart to turn away a superior


      2
       Contrary to Huber’s assertion, Aka v. Washington Hospital Center, 156 F.3d
1284 (D.C. Cir. 1998), does not hold the ADA requires an employer to place a
disabled employee in a position while passing over more qualified applicants. Rather,
Aka only rejects an “interpretation of the reassignment provision as mandating
nothing more than that the employer allow the disabled employee to submit his
application along with all of the other candidates.” Id. at 1305.

                                         -5-
applicant. We find this approach persuasive and in accordance with the purposes of
the ADA. As the Seventh Circuit noted in Humiston-Keeling:

      The contrary rule would convert a nondiscrimination statute into a
      mandatory preference statute, a result which would be both inconsistent
      with the nondiscriminatory aims of the ADA and an unreasonable
      imposition on the employers and coworkers of disabled employees. A
      policy of giving the job to the best applicant is legitimate and
      nondiscriminatory. Decisions on the merits are not discriminatory.

Id. at 1028 (internal quotation omitted). “[T]he [ADA] is not a mandatory preference
act.” Id.

       We agree and conclude the ADA is not an affirmative action statute3 and does
not require an employer to reassign a qualified disabled employee to a vacant position
when such a reassignment would violate a legitimate nondiscriminatory policy of the
employer to hire the most qualified candidate. This conclusion is bolstered by the
Supreme Court’s decision in U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 406 (2002),
holding that an employer ordinarily is not required to give a disabled employee a
higher seniority status to enable the disabled employee to retain his or her job when
another qualified employee invokes an entitlement to that position conferred by the
employer’s seniority system. We previously have stated in dicta that “an employer
is not required to make accommodations that would subvert other, more qualified
applicants for the job.” Kellogg v. Union Pac. R.R. Co., 233 F.3d 1083, 1089 (8th
Cir. 2000) (per curiam).




      3
        See Turco v. Hoechst Celanese Corp., 101 F.3d 1090, 1094 (5th Cir. 1996)
(“The [ADA] does not require affirmative action in favor of individuals with
disabilities. It merely prohibits employment discrimination against qualified
individuals with disabilities, no more and no less.”).
                                         -6-
       Thus, the ADA does not require Wal-Mart to turn away a superior applicant for
the router position in order to give the position to Huber. To conclude otherwise is
“affirmative action with a vengeance. That is giving a job to someone solely on the
basis of his status as a member of a statutorily protected group.” Humiston-Keeling,
227 F.3d at 1029.

        Here, Wal-Mart did not violate its duty, under the ADA, to provide a reasonable
accommodation to Huber. Wal-Mart reasonably accommodated Huber’s disability by
placing Huber in a maintenance associate position. The maintenance position may not
have been a perfect substitute job, or the employee’s most preferred alternative job,
but an employer is not required to provide a disabled employee with an
accommodation that is ideal from the employee’s perspective, only an accommodation
that is reasonable. See Cravens v. Blue Cross & Blue Shield of Kan. City, 214 F.3d
1011, 1019 (8th Cir. 2000). In assigning the vacant router position to the most
qualified applicant, Wal-Mart did not discriminate against Huber. On the contrary,
Huber was treated exactly as all other candidates were treated for the Wal-Mart job
opening, no worse and no better.

III. CONCLUSION
     We reverse the judgment of the district court, and we remand for entry of
judgment in favor of Wal-Mart consistent with this opinion.
                      ______________________________




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