                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           MAY 19 2000
                            FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

    PAMELA HINES,

                Plaintiff-Appellant,

    v.                                                    No. 99-1280
                                                      (D.C. No. 98-N-1462)
    CHRYSLER CORPORATION,                                   (D. Colo.)

                Defendant-Appellee.


                             ORDER AND JUDGMENT           *




Before TACHA , EBEL , and BRISCOE , Circuit Judges.



         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.

         Plaintiff seeks review of an order of the district court granting summary

judgment in favor of defendant on plaintiff’s employment discrimination claims.



*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
She alleged defendant violated the Americans with Disabilities Act (ADA),

42 U.S.C. §§ 12101-12213, by refusing to accommodate her disability and

ultimately terminating her employment. She also asserted state law claims for

promissory estoppel and bad faith breach of contract. We have jurisdiction

pursuant to 28 U.S.C. § 1291, and we reverse and remand the matter for further

proceedings.

      “We review a district court’s grant of summary judgment de novo, applying

the same legal standard used by the district court pursuant to Federal Rule of

Civil Procedure 56(c).”   Deboard v. Sunshine Mining & Ref. Co.    ,___ F.3d ___,

Nos. 97-6226, 97-6249, 98-6020, 2000 WL 526928, at *8 (10th Cir. May 2,

2000). The parties have agreed that the only issue before us in this appeal is

whether the district court erred in ruling that defendant was not obligated to

reassign her to another position within the company as an attempt to

accommodate her disability. In so doing, the court relied on our panel decision in

Smith v Midland Brake, Inc. , 138 F.3d 1304, 1312 (10th Cir. 1998),    rev’d &

remanded , 180 F.3d 1154 (10th Cir. 1999) (en banc) (   Midland Brake I ), that

      [w]hen a plaintiff is not qualified, even with reasonable
      accommodation, for the job which he currently holds . . ., the
      employing entity has no obligation to consider reassigning
      him to another position. Under the current EEOC guidelines, the
      employer’s obligation to consider reassignment arises only if the
      employer can accommodate the employee in his current position,
      but would experience undue hardship in doing so.


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       Our subsequent en banc decision modified the panel’s holding. In the en

banc opinion, we outlined the two questions before the court. We first asked

whether an employee can be a qualified person with a disability if the person is

unable to perform the essential functions of her present job, regardless of any

accommodations, but could perform the essential functions of another available

company job, with or without reasonable accommodations. Second, we

questioned and subsequently defined the scope of the employer’s obligation to

offer to that qualified person with a disability a reassignment job.   See Midland

Brake , 180 F.3d at 1159 ( Midland Brake II ).

       We recognized in Midland Brake II that the statutory definition of

a qualified individual encompasses a disabled person who, with or without

reasonable accommodation, can perform the essential functions of the position

she currently holds “or desires.”    Midland Brake II , 180 F.3d at 1161. The

inquiry is not limited to an employee’s existing job, but “[r]ather the

plain language of the statute [42 U.S.C. § 12111(8)] includes an employee who

has the ability to do other jobs within the company that such disabled employee

‘desires.’” Id. We further determined that “reassignment of an employee to a

vacant position in a company is one of the range of reasonable accommodations

which must be considered and, if appropriate, offered if the employee is unable to

perform his or her existing job.”    Id. at 1167. Moreover, we twice emphasized


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that the EEOC Interpretive Guidance specifically states that reassignment does

not mean that an employee is permitted to merely compete for a vacant position,

but rather that “the employee gets the position if s/he is qualified for it.”

Id. at 1166-67; 1170.

       Here, of course, the district court concluded that defendant was not

obligated to even consider transferring plaintiff to another position in the

company and therefore did not consider the second part of      Midland Brake II ,

the scope of an employer’s reassignment duty. We address this issue briefly

because defendant would have us uphold the district court’s grant of summary

judgment on the ground that it adequately fulfilled the requirements of    Midland

Brake II by notifying her of the procedures for transferring to other company

facilities and of the collective bargaining procedures applicable to such transfers.

Appellee’s Br. at 13. Defendant also contends it was plaintiff’s obligation to

identify a vacant position to which she could have been transferred, but that

plaintiff failed to do so.   See id. at 8-9; 16-19. Finally, defendant contends that

plaintiff did not ask her union representative to file a grievance regarding any

failure to receive a transfer.   See id. at 15-16.

       In delineating the scope of the reassignment duty, we recognized that the

interactive process between the employer and employee generally begins with

notification to the employer of the employee’s disability and limitations along


                                            -4-
with the employee’s desire for reassignment if no reasonable accommodation in

the existing job is possible.   See Midland Brake II , 180 F.3d at 1171-72.

Thereafter, “ both parties have an obligation to proceed in a reasonably interactive

manner . . . .” Id. at 1172 (emphasis added).

       We further recognized that “[t]he exact shape of this interactive process

will necessarily vary from situation to situation and no rules of universal

application can be articulated.”   Id. at 1173. By example, we specifically

articulated that in “larger companies or companies where the employee does not

have ready access to information regarding available jobs, it might be reasonable

to require the employer to identify jobs . . .” appropriate for reassignment

consideration.   Id. Thus, as in Midland Brake II , “summary judgment would be

premature if there is a genuine dispute regarding whether [defendant] participated

in good faith in attempting to secure a reassignment position for [plaintiff] as part

of its duty to offer a reasonable accommodation to [plaintiff].”       Id. at 1174.

“[A] failure to reassign a disabled employee most certainly can constitute

discrimination, and therefore a basis for liability, under the ADA.”       Davoll v.

Webb , 194 F.3d 1116, 1132 (10th Cir. 1999).

       Defendant contends that plaintiff failed to identify any job which was

vacant and for which she was qualified, emphasizing our requirement that to

survive summary judgment the employee “must, at the time of the summary


                                            -5-
judgment proceeding, specifically identify and show [that one or more appropriate

vacant jobs] were available within the company.” Appellee’s Br. at 10, citing

Midland Brake II , 180 F.3d at 1179. However, this presumes the preceding step

in the process, i.e., that the employee requested an accommodation “by

reassignment to a vacant position, which the       employee may request the employer

identify through the interactive process.”     Id. (emphasis added).

       Defendant further argues that plaintiff should have requested her union

representative to file a grievance contesting the failure to transfer her. We

decline to consider this argument as it was not the basis of the district court’s

decision, nor does it obviate defendant’s requirements under        Midland Brake II . In

this case, as in Midland Brake II , there is a genuine issue of material fact as to

whether defendant adequately responded to plaintiff’s request for reassignment.

We express no opinion on whether, after proper application of the        Midland Brake

II factors, summary judgment will yet be appropriate.      See id. at 1179-80.

       REVERSED and REMANDED.



                                                        Entered for the Court



                                                        David M. Ebel
                                                        Circuit Judge



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