1. United States District Court
For the District of Connecticut
____________________________________
)
VAN PERRINE, )
)
Plaintiff, )
)
v. ) Case No. 311-CV-120SSH
)
ROGER’S BUILDING SUPPLY, )
)
Defendant. )
____________________________________ i
MEMORANDUM IN SUPPORT OF
DEFENDANTS MOTION FOR SUMMARY JUDGEMENT
QUESTION PRESENTEDii
As a matter of law can an employer be held liable for discrimination under the Americans
with Disabilities Act for allegedly refusing to provide reasonable accommodations based solely
on the choice not to reassign a disabled employee to a vacant position over a candidate of
superior education and qualifications; particularly after providing notice to the employee of the
vacant position, giving their application great consideration, and upon hiring the more educated
and qualified candidate, offering them an alternative position within the company.
PROCEDURAL HISTORYiii
On March 14, 2011, plaintiff filed a Charge of Discrimination with the United States
Equal Employment Opportunity Commission against Roger’s. On May 3, 2011, plaintiff

2. received a dismissal and notice of rights from the EEOC. Plaintiff filed his complaint pursuant
to Title I of the Americans with Disabilities Act on May 9, 2011. Because plaintiff filed his
complaint within 90 days of receiving his dismissal and notice of rights, he has complied with all
conditions precedent to filing the suit. The depositions of both parties have been taken, and
Roger’s now files a Motion for Summary Judgment. In this motion Roger’s seeks summary
judgment determining that as a matter of law an employer cannot be held liable for
discrimination under the Americans with Disabilities Act based solely on failing to reassign a
disabled employee to a vacant position over a candidate of superior education and
qualifications.iv
STATEMENT OF FACTSv
Roger’s is a chain of home improvement stores serving the northeast United States. The
plaintiff worked as a stocker for Roger’s from November 1996 until October 4, 2010. (Com.8).
On October 4, 2010, while plaintiff was performing his typical task of unloading lumber, the
truck he was unloading from rolled forward, and the plaintiff fell approximately seven feet to the
ground, with the metal plank and lumber falling on top of him. As a result of his accident, the
plaintiff is now handicapped and unable to fulfill the job requirements of the stocker position.
(Com.9). Roger’s then provided plaintiff with nine weeks of medical leave.vi
This allowed the
plaintiff to maintain his employment status while he recovered in a hospital and rehabilitation
center. (Com.10). By January 2011 the plaintiff was ready to return to work. On January 5, 2011,
the plaintiff contacted Austin Brady, the district manager of Roger’s, for assistance concerning
transferring to a new position of employment suitable to his confinement to a wheelchair. (Ex.
C). Brady offered the plaintiff advice on exploring the company’s online application resources
and told him to apply for any position he was qualified for. (Ex. B). The plaintiff then applied
for an inventory clerk position. (Ex. B). The 263 applications for the position were examined
thoroughly by Ross Clark, a regional manager at Roger’s. (Ex. A). Clark narrowed the applicant
pool down to the 10 best candidates, one being the plaintiff. (Ex. A). Clark found the plaintiff to
be a top candidate for the job despite only having a GED and no secondary education. After

3. conducting interviews of the top 10 Clark made what he considered the proper business decision.
Pursuant to Roger’s policy to hire the best qualified candidate for every job Clark awarded the
position to a Ms. Farnsworth due to her superior credentials including a college degree and 10
years of experience as an inventory manager. (Ex. A). Mr. Brady offered the plaintiff, who had
been on medical leave, a position as a greeter, which he accepted. (Ex. A).
ARGUMENT Ivii
Summary judgment should be granted in Roger’s favor because an objective
interpretation of the ADA’s plain language concerning reasonable accommodations’ leaves
the plaintiff without a legally valid complaint.
The plaintiff’s discrimination claim is based entirely on the misguided conclusion that the
ADA’s provision concerning reasonable accommodations forces Roger’s to show him
preferential treatment and reassign him to a vacant position despite the existence of other more
qualified applicants. To invalidate this claim we need look no further than the language of the
statute itself.
A. The statutory language of the ADA upon which the plaintiff’s claim is based makes
absolutely no reference to a requirement that an employer reassign a disabled
employee to a vacant position over a better qualified applicant.viii
The ADA states that “no covered entity shall discriminate against a qualified individual on
the basis of disability in regard to job application procedures, the hiring, advancement, or
discharge of employees, employee compensation, job training, and other terms, conditions, and
privileges of employment.” 42 U.S.C. § 12112(a). The ADA goes on to define discrimination as
it applies to the case at hand as “not making reasonable accommodations to the known physical
or mental limitations of an otherwise qualified individual with a disability who is an applicant or

4. an employee, unless such covered entity can demonstrate that the accommodation would impose
an undue hardship on the operation of the business of such covered entity.” 42 U.S.C. §
12112(b)(5)(A). Finally, the ADA provides the following description defining an employer’s
obligation concerning making a reasonable accommodation. “The term reasonable
accommodation may include: (A) making existing facilities used by employees readily
accessible to and usable by individuals with disabilities; and (B) job 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)(A)(B).
This statute contains absolutely no language plainly indicative of any obligation on the part
of an employer to provide a disabled employee with preferential reassignment over other
qualified applicants to a vacant position. An objective interpretation of the statute entitles the
plaintiff to a vacant position, not the vacant position of his choice, and not preferential treatment
over other qualified applicants.ix
Based on this unbiased interpretation of the statute’s plain
language an employer’s obligation to make reasonable accommodations in respect to the
reassignment of a disabled employee is satisfied simply by offering them a vacant position
within the company for which they are qualified.
B. Federal Appellate Courts across the nation have adopted positions rejecting the notion
that the language of the ADA establishes a requirement that employers reassign
disabled employees to vacant positions ahead of more qualified candidates.
In the interest of preventing injusticex
numerous Federal Appellate Courts spanning the
country have rendered decisions adopting and mirroring this objective interpretation. In Huber
v. Wal-mart the 8th
Circuit U.S. Court of Appeals held that the ADA “is not a mandatory

5. preference act… 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.” Huber v. Wal-mart Stores Inc. 486 F.3d 483
(2007). In Daughtry v. City of El Paso the 5th
Circuit U.S. Court of Appeals denounced the idea
of interpreting the ADA’s requirement of reasonable accommodation to include preferential
reassignment and portrayed the notion as an unfounded leap towards affirmative action. “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. It prohibits employment discrimination against qualified individuals with
disabilities, no more and no less.” Daughtry v. City of El Paso 56 F.3d 699 (1995). In E.E.O.C v.
Humiston-Keeling, Inc. the U.S. Court of Appeals of the 7th
circuit followed suit when it rejected
the Equal Employment Opportunity Commission’s contention that the statute called for
preferential reassignment, stating: “The fact that the disability isn’t what makes the disabled
person unable to perform the job as well as the person who got it is, in the Commission’s view,
irrelevant. We do not agree with the Commission’s view on the statutory provision on
reassignment.” E.E.O.C v. Humiston-Keeling, Inc. 227 F.3d 1027 (2000). This decision
represents not only another voucher for the fair and objective interpretation of the ADA’s
provision on reassignment; it serves to massively discredit a persuasive resource of the opposing
viewpoint.xi
In fact, the 7th
circuit of the Federal Court System found the notion of preferential
reassignment so insufficiently persuasive that they rejected it even with the ADA’s regulatory
agency as its champion.
C. Based on the statute’s plain meaning Roger’s has fulfilled its obligation to provide
reasonable accommodations to the plaintiff and should be exonerated of any charge of
discrimination.

6. After an examination of the ADA’s plain meaning and in compliance with the decisions
rendered in the cases above, it can be said that Roger’sxii
never had an obligation to reassign the
plaintiff to a vacant position ahead of a more qualified applicant. In fact, the only obligation
bestowed upon Roger’s by the reassignment provision of the ADA was to accommodate the
plaintiff with a vacant position within the company that he could perform. Roger’s offered the
plaintiff a vacant position within the company that he was capable of doing. A fact the plaintiff
cannot deny.xiii
In so doing Roger’s fulfilled its obligation to reasonably accommodate the
plaintiff and satisfied with full compliance the requirements of the ADA including the only
provision at issue in this case. In turn, summary judgment should be entered in Roger’s favor.
ARGUMENT II
Summary Judgment should be granted in Roger’s favor because the legislative history
of the ADA clearly reflects that the legislature never intended the act to be interpreted to
demand preferential treatment of the handicapped over other more qualified applicants.xiv
At no point in the history of the ADA have the legislative bodies of this country intended the
act to give rise to complaints such as the plaintiff’s. In fact, they’ve went to great lengths to
prevent them. The legislature’s intent to exclude actions based on preferential hiring due to
disabilities from validation under the act was made clear in a House Committee Report before
the act was passed and emphasized in a later amendment.
A. House Report No. 101-485(III) explicitly condones the idea that the act creates an
obligation for employers to show preference to handicapped candidates in the hiring
process.
In 1990, while the ADA was a bill going through the final stages of legislation, The
Committee on the Judiciary was charged with amending the bill to establish clear standards for
the prohibition of discrimination based on disability. Upon completion of this task they

7. compiled House Report No. 101-485xv
which included a comprehensive report of their findings
and a section by section analysis of the bills purpose and legislative intent. The following is a
quote from the section analyzing discrimination:
“As with other civil rights laws prohibiting discrimination in employment, the Committee does
not intend to limit the ability of covered entities to choose and maintain a qualified workforce.
Covered entities continue to have the ability to hire and employ employees who can perform the
job. Employers can continue to use job-related criteria in choosing qualified employees. For
example, in a job that requires lifting 50 pound boxes, an employer may test applicants and
employees to determine whether they can lift 50 pound boxes. Similarly, an employer can
continue to give typists typing tests to determine their abilities. The Committee does not intend
that covered entities have an obligation to prefer applicants with disabilities over other
applicants on the basis of disability.” H. Rep. No. 101–485(III) (May 15, 1990). xvi
This statement clearly expresses the legislature’s desire to negate interpretations of the bill
that impose mandates on employers like Roger’s that require they show favoritism to
handicapped individuals over other qualified applicants simply based on their handicap.
B. In their 2008 amendment of the ADA the legislature narrowed key terms of the act in
an attempt to better define the type of discriminatory action for which the statute
provides an avenue of recovery.
The 2008 amendment struck the term “discriminate” from §12112 of the act and replaced it
with the phrase “discriminate against a qualified individual on the basis of disability”. PL 110–
325 (S 3406). This is indicative of the legislature’s continued desire to prevent meritless suits
pursuant to the act. It more clearly indicates that plaintiff’s seeking recovery under the ADA
must show that they have been denied opportunities based on their handicap. In the case at hand,
to allege discrimination in the hiring process, the plaintiff must show his handicap to be the “but
for” reason his job application was declined. Simply qualifying as handicapped and being
passed on for an equally if not more desirable candidate is not sufficient to seek recovery for
discrimination.

8. ARGUMENT III
Summary judgment should be granted in favor of Roger’s based on the principles of
promoting good policy and fairness to the general public.xvii
For the benefit of the American workforce and as a matter of good public policy the act
should not be interpreted to require preferential reassignment to satisfy its demand for reasonable
accommodation. Such an interpretation would put in doubt the very parameters of the term
“reasonable” and expose the American Court system and business structure to a plethora of
problematic civil pursuits bolstered by statutory overreach, all culminating in a bottomless pit of
unnecessary adjudication.xviii
A plain reading of the statutes meaning and examination of the
legislature’s obvious intent, leaves no doubt, that as a matter of good policy and general fairness
to the American job applicant, this court can not adopt a standard that provides a class of people
an unwarranted advantage in the hiring process. On principle, such interpretation would
contradict the very core values the ADA was intended to promote. The act fights to level the
playing field in the pursuit of happiness for all people, not skew it to the automatic advantage of
one class, regardless of what sets that class apart.
CONCLUSIONxix
Roger’s should be granted summary judgment determining that as a matter of law an
employer cannot be held liable for discrimination under the Americans with Disabilities Act
based solely on failing to reassign a disabled employee to a vacant position over a candidate of
superior education and qualifications. In striving to maintain continuity to the plain language of
the statute, respect for Congress’ legislative intent, and general fairness amongst American job
applicants, this court should grant Roger’s motion for summary judgment.

9. October 1, 2011 Respectfully Submitted,xx
Adam Anderson
Adam Anderson, Esq.
State Bar No. 4567
11 Hamlet Way
Normal, IL 60603
(773) 553-1000

10. i
Here I’ve attempted to reorganize the heading of my document that notes the plaintiff,
defendant and case number. In my original work it was disorganized and poorly aligned.
Cleaning it up and restructuring this section certainly provides a boost in my ethos with the
Court. My original attempt was poorly formatted and looked unprofessional. Submitting poorly
formatted work to the Court is a terrible mistake, especially when the problem exists in the very
first lines of the document.
ii
The question presented serves two purposes. The heading itself provides structure to the
memo making it easy to read, while the content within provides explicit direction for the Court,
leaving no doubt from the very beginning as to what issues will be discussed. Ethos is boosted
because proper structure connotes professionalism.
iii
A procedural history section such as this one is also a great ethos booster. This section
immediately informs the Court of the actions taken in the case leading up to the current motion.
It insures the Court that the correct steps have been taken leading up to the motion and indicates
that filing it is an appropriate action. I feel including a detailed section such as this one makes
the filing attorney look professional, and indicates to anyone reading it that they were willing to
take the time to provide a thorough explanation.
iv
This section was originally the most mistake laden area of my paper. I had actually mixed the
two parties up often referring to Perrine as the defendant and Roger’s as the plaintiff. I also
stated that it was the plaintiff’s motion for summary judgment which is clearly not the case.
There were also gross amounts of unnecessary capitalizations throughout. I truly feel sorry for
anyone who read this original document because I almost certainly confused them from the very
beginning. I’ve attempted to make sense of my errors and compared to the original, ethos is
substantially boosted.
v
This section provides a structured and succinct description of the relevant facts. It provides the
Court with immediate context for the issues and my arguments. A professionally written
statement of the facts boosts ethos and the context it provides boosts the logos of my arguments
later in the document.
vi
While a statement of the facts is a less argumentative section and must contain only truths, it
can still be written in a way that boosts pathos for a client. Throughout these first through lines
I’ve employed several techniques in an attempt to do so. I referred to my client, “Roger’s,” first
and called them by name as opposed to using the term “defendant.” In turn I mentioned Van
Perrine second referring to him only as “plaintiff.” This was an attempt to humanize my client in
the mind of the reader while dehumanizing the opposition. Then I immediately and succinctly
got the unfavorable facts concerning the injury suffered by Perrine while working for Roger’s
out of the way. In turn, I immediately tried to further declaw them with a more humanizing and
favorable reference to the fact that Roger’s provided him with medical leave and allowed him to
maintain his employment status. Pathos boosts all around.
vii
I broke my argument sections into headings and subheadings. I felt this provided my paper
more organization (boosting ethos) and made my individual arguments easier to understand
(boosting logos).

11. viii
The font of this subheading was inconsistent with the rest of the document. I’m not sure how
or why this mistake was made. I changed it to the font I used throughout to provide uniformity.
I feel this looked more professional, thus boosting ethos.
ix
This is my plain language argument concerning the applicable statute in this case. I reworded
it slightly and tried to place precise emphasis on the word “a” in the statutes language. In the
context of an objective reading of the statute I feel this argument boosted my logos substantially.
x
I decided to use the term “preventing injustice” here as opposed “fairness” because I feel like it
provided a boost of pathos. We’re not just trying to make a “fair” decision here, we’re trying to
“prevent a terrible injustice” from being done to poor defendant Roger’s!
xi
References to direct quotes from other persuasively similar cases that support my interpretation
of the statute’s language provide a strong foundation for my logic. Logos is boosted.
xii
Here I misspelled “Roger’s” as “Rodger’s.” I managed to do this at random in several places
throughout the document. My ethos was obviously taking a hit. It may have even weakened
my pathos because it appeared I didn’t care enough to take the time to consistently spell my
clients name correctly. Needless to say I’ve attempted to correct this error throughout.
xiii
Here I’ve noted that the plaintiff “cannot deny” a fact that supports the logic of my conclusion
in this argument. I think this not only boosts my logos, but in a roundabout way boosts my
pathos by using the term “cannot deny” to imply that the plaintiff himself is guilty of something.
I had used the phrase “does not deny” in the original document but chose to switch to “cannot
deny.” While both statements are true, the term “cannot” villainizes the plaintiff and gives the
statement more bite in the mind of the reader because it implies he sure would like to be able to
deny it.
xiv
In my original document I had typed this heading all in capital letters making it inconsistent
with the other equivalent headings in the document. Again, I corrected this formatting mistake
to boost ethos.
xv
I remember going to great lengths to find this house report on the ADA when it was still a bill.
This was an attempt to boost my logos substantially by demonstrating support for the logic
behind my interpretation of the act coming directly from the people who created it.
xvi
This was my attempt to reformat this rather lengthy quotation to the appropriate “block”
format. I know the block format is appropriate here but I admittedly struggled to implement the
change very well. This was an attempt to boost ethos, and an improvement over the original, but
it remains something I feel I need to work on.
xvii
This was the public policy argument section of my paper. While briefer than my other
arguments I tried to use it as a chance to stand on my soapbox and boost some pathos. I’m
interpreting the act this way for the good of the common man!

12. xviii
I think this sentence was me jumping up and down on that soapbox. This was an attempt to
support the logic of my argument while simultaneously boosting pathos by referencing the
rampant waste and injustice that would the American people would be forced to suffer under the
alternative interpretation.
xix
This section provides a quick and succinct reference to the overarching conclusion drawn by
all of my arguments. While the section isn’t overly descriptive the reader finishes with each of
my arguments for a favorable judgment fresh in their mind.
xx
An appropriately formatted and cordial signature/salutation block at the end is useful in two
ways: 1. it demonstrates respect for the Court thus boosting pathos; 2. it lists my credentials,
thus boosting ethos.