PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-1069

CHARLES J. ELLEDGE,

Plaintiff – Appellant,

v.

LOWE’S HOME CENTERS, LLC,

Defendant – Appellee,

and

LOWE’S COMPANIES, INC.

Defendant.

------------------------------

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION; DISABILITY RIGHTS NORTH CAROLINA; PROTECTION AND ADVOCACY FOR PEOPLE WITH DISABILITIES, INC.; DISABILITY LAW CENTER FOR VIRGINIA; DISABILITY RIGHTS OF WEST VIRGINIA; DISABILITY RIGHTS MARYLAND; NATIONAL DISABILITY RIGHTS NETWORK,

Amici Supporting Appellant,

RETAIL LITIGATION CENTER, INC.; CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA,

Amici Supporting Appellee. Appeal from the United States District Court for the Western District of North Carolina, at Statesville. Robert J. Conrad, Jr., District Judge. (5:16-cv-00227-RJC-DCK)

Submitted: September 11, 2020 Decided: November 18, 2020

Before GREGORY, Chief Judge, and WILKINSON and NIEMEYER, Circuit Judges.

Affirmed by published opinion. Judge Wilkinson wrote the opinion, in which Chief Judge Gregory and Judge Niemeyer joined.

Robert M. Elliot, Winston-Salem, North Carolina, R. Michael Elliot, ELLIOT MORGAN PARSONAGE, Charlotte, North Carolina, for Appellant. James M. Powell, Greensboro, North Carolina, Theresa M. Sprain, WOMBLE BOND DICKINSON (US) LLP, Raleigh, North Carolina, for Appellee. Deborah R. White, RETAIL LITIGATION CENTER, INC., Arlington, Virginia; Matthew A. Fitzgerald, Richmond, Virginia, Amy Morrissey Turk, MCGUIREWOODS LLP, Norfolk, Virginia; Daryl Joseffer, Jonathan Urick, U.S. CHAMBER LITIGATION CENTER, Washington, D.C., for Amici Curiae.

2 WILKINSON, Circuit Judge:

In the aftermath of knee surgery, Chuck Elledge parted ways with his long-term

employer Lowe’s Home Center. The separation was not amicable. Soon thereafter,

Elledge sued Lowe’s for violation of the Americans with Disabilities Act (ADA), claiming

that Lowe’s had forced him out of his director-level job even though, with reasonable

accommodations, he could still perform its essential functions. He also claimed that

Lowe’s violated the ADA when it refused to reassign him to another director-level position.

Finally, Elledge alleged discrimination under the Age Discrimination in Employment Act

(ADEA). The district court granted summary judgment to Lowe’s on Elledge’s claims.

For the following reasons, we affirm.

I.

Chuck Elledge worked for Lowe’s for over two decades. In 1993, Elledge accepted

employment as a health care analyst at Lowe’s Home Center. He earned multiple

promotions over the years, ultimately attaining the position of Market Director of Stores

(MDS). In this position, Elledge oversaw a dozen stores. He ensured that his stores

complied with corporate quality standards and, of course, that they continued to turn a

healthy profit. Elledge served as an MDS for almost a decade, and the stores under his

supervision performed well.

Elledge also had problems with his right knee. In December 2014, he underwent

the most serious of four surgeries on his knee. When he returned from leave, once effortless

aspects of his job had become trials in “working through the pain.” J.A. 1993. Walking

3 the floors of the stores he supervised had become trying at times, and driving from store to

store could be taxing.

Given the demands of his station, these changes in Elledge’s condition were

significant. For Elledge and for Lowe’s, the store visits were essential to maintaining high

levels of compliance and performance. To keep pace with the needs of his stores, Elledge

had typically conducted two separate store visits each day and worked between fifty and

sixty hours each week, with the considerable walking and driving that entailed.

Upon his return to work, Elledge’s doctor ordered him to restrict his walking to no

more than four hours each day and his workday to no more than eight. Lowe’s, in

consultation with Elledge, agreed that, for a time, he could and should abide by his doctor’s

orders while he continued to work. Lowe’s also offered Elledge the use of a motorized

scooter to ease the strain on his knee during store visits. Elledge declined the use of the

motorized scooter and, although he did comply with his light-work schedule most of the

time, he did not always find himself able to follow his doctor’s orders. Elledge arranged

for his lower-ranking colleagues, who had previously only accompanied Elledge on his

store visits, to drive him to and from the stores under his supervision, so that Elledge would

have an opportunity to stretch out his knee in the back seat.

Shortly after renewing these accommodations, Lowe’s learned that Elledge would

be issued a permanent disabled parking permit. Contacting Elledge’s doctor, Lowe’s

inquired whether Elledge’s restrictions would be permanent. The doctor replied in the

affirmative: “I rec these be permanent restrictions.” J.A. 1929.

4 In response to this development, Lowe’s Regional Human Resources Director

Hollie Reinhart and Vice President of Store Operations Delno Dryden had several

conversations with Elledge. The purpose of these conversations was to chart a mutually

agreeable course forward. Although Elledge would not be able to remain in his present

position, Reinhart and Dryden spoke with him about other potential career opportunities at

Lowe’s, agreeing to network on his behalf regarding any vacancy in which he had an

interest or, in the alternative, to help shift him to a less physically demanding manager-

level role.

Displeased at the prospect of stepping down into a lower paying position, Elledge

applied to two other director-level positions, Merchandising Director of Lawn and Garden

and Merchandising Director of Outdoor Power Equipment. His applications were

considered and rejected under Lowe’s succession planning and best-qualified hiring

policies. Ryan Lane, who had been identified through the Lawn and Garden department’s

succession planning policy, was selected for the former position. Chad Sanders, who had

founded Lowe’s Assistant Store Manager Leadership Development Program and directed

Lowe’s Leadership Development Sessions for the National Sales Meetings, was selected

for the latter. Elledge, meanwhile, accepted Lowe’s offer of a severance package and early

retirement.

The matter, however, did not rest there. Elledge sued his former employer for

violation of the Americans with Disabilities Act and the Age Discrimination in

Employment Act. He argued that Lowe’s had violated its obligations under the ADA by

removing him from the MDS role and by refusing to reassign him to either of the

5 aforementioned positions. He also argued that its rejection of his applications constituted

illegal age discrimination under the ADEA. The district court granted summary judgment

to Lowe’s on both claims, finding in relevant part that Elledge had failed to show he was a

“fully qualified” individual under the ADA, who could perform the “essential functions”

of his job “with or without reasonable accommodation.” J.A. 2325–27. The district court

also found that Elledge had not shown that he was qualified for the jobs to which he had

applied, a contention necessary to his claims under both laws. Elledge appealed.

As Elledge’s appeal is from summary judgment, this court reviews the district

court’s findings de novo, drawing all reasonable inferences from the record in Elledge’s

favor. Reeves v. Sanderson Plumbing Products, Inc.,

, 150–51 (2000); Jacobs

v. N.C. Admin. Office of the Courts,

, 565 n.1 (4th Cir. 2015).

II.

The ADA provides 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 . . . .”

(a). In order to count as

a “qualified individual” entitled to the ADA’s protections, a person must be able “with or

without reasonable accommodation [to] perform the essential functions of the employment

position that such individual holds or desires.”

(8). The parties dispute

whether Elledge satisfies this definition: Elledge argues that, given reasonable

accommodation, he was capable of performing his job’s essential functions; Lowe’s denies

the same.

6 The beginning of this inquiry lies, accordingly, with a determination of just what

the essential functions of Elledge’s MDS position were. A function is essential as long as

it “bears more than a marginal relationship to the job at issue.” Rohan v. Network

Presentations LLC,

(4th Cir. 2004) (quoting Tyndall v. Nat’l Educ. Ctrs.,

Inc. of Cal.,

(4th Cir. 1994)); see also

(n)(1) (defining

an “essential function” as a “fundamental job dut[y]”). The ADA further provides that, in

any determination of a position’s essential functions, “consideration shall be given to the

employer’s judgment.”

(8).

That makes sense. The employer’s business judgment—that is, the judgment of the

entity that defined the employee’s role in the first place—commences the analysis. As is

attested in the law of other circuits, the decision about a position’s essential functions

belongs, in the first instance, to the employer; it accordingly merits “considerable

deference” from the courts. D’Amico v. City of New York,

, 151 (2d Cir.

1998); see also Dalton v. Subaru-Isuzu Auto., Inc.,

(7th Cir. 1998).

While the ADA identifies a position’s written job description as relevant to the

employer’s judgment on this question,

(8), it does not posit that

description as dispositive. Rather, a court performing the essential functions inquiry must

consult the full range of evidence bearing on the employer’s judgment, including the

testimony of senior officials and those familiar with the daily requirements of the job. See,

e.g., D'Angelo v. ConAgra Foods, Inc.,

(11th Cir. 2005); Rodal v.

Anesthesia Group of Onondaga, P.C.,

, 120–21 (2d Cir. 2004); Stephenson v.

Pfizer, Inc. Eyeglasses,

, 216 n.4 (4th Cir. 2016).

7 A.

With our consideration of the record thus informed, there is no reason to doubt the

district court’s conclusion that the essential functions of the MDS position included: (1)

standing or walking in excess of 4 hours each day; (2) travelling to all supervised stores;

and (3) working in excess of 8 hour each day. J.A. 2323–25.

Because the first two of these essential functions relate to the MDS’s personal

mobility, they will be treated together. Their importance is attested, first and foremost, by

the official MDS job description. It states that a candidate for MDS must be capable of

walking “frequent[ly],” defined as “34%–66%” of working hours, and driving

“continuous[ly],” defined as “67%–100%” of working hours. These requirements mean

that an MDS must possess the mobility and stamina to handle days in which his job requires

him to walk 66% of the time, as well as those days in which he must drive almost without

ceasing.

As a matter of plain meaning, then, Elledge’s contention that the job’s true mobility-

related requirements are determined only by the bottom figure of the listed ranges is

mistaken. In a requirements context, “between” betokens a fully inclusive range: a worker

whose strength allows him to lift a maximum of 75 pounds is unfit for a job that requires

workers to be able to lift loads weighing between 50 and 100 pounds.

Moreover, evidence whose soundness Elledge admits resolves any ambiguity in

Lowe’s favor. Elledge himself testified that coaching store managers in person,

maintaining visibility and accessibility vis-a-vis store managers and other employees, and

conducting store-walks to maintain quality standards were integral to success in the MDS

8 role. But because the MDS bears responsibility for multiple stores —no fewer than twelve

in Elledge’s case—none of these activities is possible without significant amounts of

driving and walking. Elledge testified, for example, that he usually spent between three

and four hours on each store visit and, in a normal week, conducted two such visits every

day. Each of these visits required, on average, between two and three hours walking the

floors.

The uncontradicted testimony of Elledge’s supervisor, Delno Dryden, is that such

an experience was typical among MDSs. MDSs could take between four and five hours to

conduct a visit of a single store, and they usually visited two stores each day. Even

granting all reasonable inferences in Elledge’s favor, then, the conclusion that the walking

and driving functions discussed above were essential to Elledge’s position is, in the face of

such a record, beyond any reasonable finding to the contrary.

The same is true of the need for an MDS to be able to work in excess of eight hours

each day—like the mobility-related requirements just discussed, it was an essential

function of the job. Because a written description is not exhaustive of an employer’s

judgment as to the essential functions of a position, the silence of the official MDS job

description as to an hours requirement cannot be dispositive for either side. Especially in

the absence of an explicitly stated standard, what matters is testimony about the day-to-day

regimen of the job. See Rodal, 369 F.3d at 120–21.

And here, the tale the record tells is beyond genuine dispute. Elledge himself

acknowledged that, prior to his surgery, he typically worked between fifty and sixty hours

per week. The uncontroverted testimony of other senior Lowe’s officials confirms that a

9 workweek of fifty hours or more was the norm, rather than the exception, for MDSs. It is

likewise telling that Lowe’s extended the forty-hour workweek to Elledge as an

accommodation, rather than as an adjustment Elledge could simply make at his discretion.

For a high-level directorship position whose responsibilities center upon maintaining close

contact with numerous stores, their managers, and their hourly workers, the uncontested

expectation of a lengthy workweek is entirely unsurprising. On this record, no reasonable

jury could find that working over eight hours each day was anything less than an essential

function of the MDS position.

B.

The threshold question, then—whether walking, driving, and working in the

amounts just described “bear[] more than a marginal relationship to the job at issue,”

Rohan,

(quoting Tyndall,

)—must be answered in the

affirmative. Next we must determine whether Elledge is a “qualified individual” under the

ADA, that is whether he was able to perform these essential functions “with or without

reasonable accommodation.”

(8).

That Elledge could not perform the essential functions of his job without reasonable

accommodation is not open to serious dispute. The orders of Elledge’s physician

established his limitations without qualification: he was to walk no more than four hours

and work no more than eight hours each day. Because of these restrictions, Elledge needed,

requested, and received accommodations that would allow him to deviate from the standard

requirements of his job.

10 C.

Thus the final question: could Elledge perform the essential functions of his job

“with . . . reasonable accommodation”? The answer depends, of course, on what counts as

a “reasonable accommodation” under the ADA.

We start with the text. The ADA defines “reasonable accommodation” as one that

“may include 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 . . . and other

similar accommodations . . . .”

(9) (emphases added). As the emphasized

language makes clear, the ADA defines “reasonable accommodation” in a way that is

illustrative rather than exhaustive. The purpose of such language is to indicate that the

range of reasonable accommodations is broad and that its contours are clarified by, but not

limited to, the specifically enumerated items. See EEOC v. St. Joseph’s Hosp., Inc.,

, 1345 & 1345 n.5 (11th Cir. 2016). It is also to suggest that what counts as a

reasonable accommodation is not an a priori matter but one that is sensitive to the particular

circumstances of the case. See

And finally, the text teaches that what will serve as a

reasonable accommodation in a particular situation may not have a single solution, but

rather, many possible solutions.

The actor responsible in the first instance for reducing this wide solution-space to a

concrete accommodation is not the judiciary, or even the disabled employee—it is the

employer. To the extent an employee may be accommodated through a variety of

measures, the employer, exercising sound judgment, possesses “ultimate discretion” over

11 these alternatives. 29 C.F.R. app. § 1630. Such is the established position of this circuit,

Reyazuddin v. Montgomery County Maryland,

, 415–16 (4th Cir. 2015), as

well as that of every other circuit that has ruled on the matter, see e.g., Hankins v. The Gap,

Inc.,

, 800–01 (6th Cir. 1996); Kiel v. Select Artificials, Inc.,

(8th Cir. 1999) (en banc). Provided the employer’s choice of accommodation is

“reasonable,”

(8), not even a well-intentioned court may substitute its

own judgment for the employer’s choice.

Elledge contends that, at the time he learned that he could no longer remain in the

MDS position, he was able to perform the essential functions of his job with the

accommodations that Lowe’s had already provided him. As noted above, the

accommodations formally offered and accepted through Lowe’s Interactive Process Forms

included: (1) allowing Elledge to operate on a light-work schedule (i.e., walking limited to

four hours per day and work limited to eight hours per day); and (2) offering Elledge use

of a motorized scooter for his in-store visits. Elledge argues that these accommodations

allowed him to perform the truly essential functions of his job, because during the relevant

period the stores under his care continued to flourish.

We are not persuaded. To begin with, Elledge did not take advantage of his light-

work accommodation—that is, he did not comply with his doctor’s orders—with total

consistency. His own estimate was that he flouted his light-duty restrictions about 25% of

the time. Furthermore, despite accepting the offer on paper, Elledge steadfastly refused

even to try using a motorized scooter to aid his store walk-throughs. In spite of his pain,

Elledge insisted that he “didn’t need one then. . . and [he] would have never asked for one.”

12 J.A. 1926. Finally, without receiving formal clearance through interactive process, Elledge

crafted his own sort of accommodation: he made an arrangement with the associates who

usually accompanied him on his store visits, whereby they would drive him back and forth,

so as to ease the strain on his knee.

The point of cataloguing these lapses and irregularities is not to impugn Elledge. It

is simply to say that even the version of the record most favorable to Elledge does not tell

the story of a disabled employee who followed his doctor’s orders regularly or utilized his

accommodations fully. Instead, it tells the story of an individual who accepted or created

certain accommodations, rejected others, and pushed himself beyond the limits of his

doctor’s orders. Under these circumstances, we cannot find that the claimed success of his

stores proved his ability to perform the essential functions of his job, given the reasonable

accommodations Lowe’s had extended to him. See E.E.O.C. v. Womble Carlyle Sandridge

& Rice, LLP,

(4th Cir. 2015) (per curiam). In fact, his manifest

need to disregard his physician as well as to seek informal accommodation outside the

interactive process created a situation that Lowe’s could reasonably assume had limited

long-term potential.

Given the essential functions of his job—to be able to walk 66% of the day, to be

able to transport himself to and from his stores, and to be able to work over forty hours

each week—no reasonable accommodation could, ultimately, have sufficed. But this was

not for want of trying, or hoping, on both sides. Lowe’s acted reasonably to accommodate

Elledge’s transition from a debilitating surgery back to full employment. Lowe’s extended

the aforementioned accommodations on a temporary basis, in anticipation of Elledge

13 making a full recovery. When sixty days after Elledge returned to work, his condition had

not improved and his doctor’s restrictions had not loosened, Lowe’s did not give up on

Elledge—it granted him another temporary extension of the same accommodations.

But over the relevant period, Elledge’s condition never substantially improved, and

his doctor’s orders continued to fall short of what was required for Elledge to perform the

essential functions of his job. Part-way through the extension period, Lowe’s contacted

Elledge’s doctor—the professional most knowledgeable about Elledge’s medical

condition—about Elledge’s prospects for recovery. The doctor responded, “I rec these be

permanent restrictions.” Elledge complains that Lowe’s reacted too hastily to ambiguous

correspondence. But Lowe’s interpretation, that Elledge’s long-term physician was

referring to the light-duty restrictions he had been recommending for months, was a

reasonable one. See Adams v. Anne Arundel County Public Schools,

(4th Cir. 2015) (emphasizing the weight of doctors’ professional judgment). Especially

after Elledge’s four separate knee surgeries in almost as many years, Lowe’s was also

reasonable in concluding, on the basis of this new information, that the light-duty

accommodation was no longer viable. With no tangible signs of improvement, Lowe’s

could not have been expected to extend such a dramatic reduction in its work requirement

indefinitely. Elledge himself had not requested a permanent light duty accommodation.

As to Lowe’s other accommodations, use of a motorized scooter was an eminently

reasonable one that could have augmented Elledge’s on-the-ground mobility. But this path

to fulfilling one of the job’s essential functions was foreclosed by Elledge himself. At any

time during the accommodations period, he could have availed himself of an in-store

14 scooter and at least tried it out. He did not, and he had no intention of ever doing so. In

practice, then, Elledge rejected this accommodation. Lowe’s, possessing “ultimate

discretion” over the choice among reasonable accommodations, was not—in the face of

Elledge’s rejections of such an obvious and helpful offer—required to extend another. See

Reyazuddin, 789 F.3d at 415–16 (4th Cir. 2015) (“an employer may reasonably

accommodate an employee without providing the exact accommodation that the employee

requested”); see also Hankins v. The Gap, Inc., 84 F.3d at 800–01; Aka v. Wash. Hosp.

Ctr.,

(D.C. Cir. 1998).

As for the possibility of formalizing Elledge’s arrangement to have another

employee drive him to his stores, this court is not empowered to compel Lowe’s to

recognize such a course as reasonable. Although employers must provide reasonable

accommodation to assist disabled employees in performing the essential functions of their

jobs, employers do not need to change a job’s essential functions or split them across

multiple employees. 29 C.F.R. app. § 1630.2(o); see also Shin v. Univ. of Md. Med. System

Corp.,

(4th Cir. 2010); Milton v. Scrivner, Inc.,

(10th Cir. 1995) (finding ADA does not mandate accommodations that would require

other employees to work “harder or longer”). If Elledge could not drive himself, but rather

had to arrange for other employees to drive him, it is difficult to see just how Lowe’s could

have reasonably accommodated him in performing that essential function.

In the end, Lowe’s made reasonable, sensitive attempts to accommodate an

indisputably valued employee in his present position. And yet, between the fixity of

Elledge’s mobility-related restrictions and his refusal to accept the motorized scooter

15 accommodation, Lowe’s determination that he could no longer remain in the highly

demanding MDS position was reasonable. Even drawing all reasonable inferences in favor

of Elledge, it remains that no reasonable accommodation, consistent with Elledge’s

doctor’s orders, would have allowed him to perform his job’s essential functions.

III.

Elledge argues nevertheless that even if he could not have been reasonably

accommodated as an MDS, Lowe’s violated his rights under the ADA by failing to reassign

him to another vacant and comparable position. In particular, Elledge identifies two such

positions: Merchandising Director of Lawn and Garden; and Merchandising Director of

Outdoor Power Equipment.

A.

Claims for reassignment under the ADA must be handled with care because of

reassignment’s unique status under the law. Although “reassignment to a vacant position”

appears in the middle of

(9)’s undifferentiated list of possible

accommodations, other circuits, as well as the interpretive guidance of the EEOC,

persuasively recognize reassignment as an accommodation of “last resort.” EEOC,

Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the

ADA (2002); see e.g., Aka v. Wash. Hosp. Ctr.,

(D.C. Cir. 1998)

(citing H.R. Rep. No. 485(II), 101st Cong., 2d Sess. at 63 (1990), reprinted in 1990

U.S.C.C.A.N. 267, 345; S. Rep. No. 116, 101st Cong., 1st Sess. at 6 (1989)); Huber v. Wal-

Mart Stores, Inc.,

(8th Cir. 2007) (citing Cravens v. Blue Cross & Blue

Shield of Kansas City,

(8th Cir. 2000)).

16 Reassignment’s “last among equals” status is not only clearly attested in the legal

landscape; it also respects core values underlying the ADA and employment law more

generally. It recognizes that basic fairness in such a context rests atop an often-rickety

three-legged stool, whose legs are the employer, the disabled employee, and—easiest to

neglect—the other employees. First, consider the employer. Allowing other reasonable

forms of accommodation to take precedence over reassignment protects the employer’s

discretion over hiring. This discretion is what makes it possible for the employer to

discharge its responsibility to promote workplace stability as its workforce changes over

time, and—to the extent appropriate—to reward merit through predictable advancement.

Such discretion is also fundamental to the employer’s freedom to run its business in an

economically viable way. See EEOC v. St. Joseph’s Hosp., Inc.,

(11th

Cir. 2016).

The disabled employee also benefits. Although an employer may accommodate

through reassignment at any point, reassignment’s last-resort status encourages employers

to take reasonable measures to accommodate their disabled employees in the positions they

already hold. The employee is thereby saved from being hurled into an unfamiliar position

with a different set of demands; instead, he is allowed to maintain and to grow the

investment he has already made in his present job.

Finally, deemphasizing reassignment helps preserve a fair balance in the

relationship between a disabled employee and his colleagues. Reassignment is unique in

its potential to disrupt the settled expectations of other employees, so much so that no

employer is required to reassign where reassignment would “bump” another employee

17 from his position, Aka,

; E.E.O.C. v. Sara Lee Corp.,

(4th Cir. 2001), or block reasonable, long-time workplace expectations. Holding

reassignment in reserve for unusual circumstances bolsters the confidence of other

employees that the misfortune of a colleague will not unfairly deprive them of opportunities

for which they themselves have labored. See U.S. Airways v. Barnett,

, 404–

05 (2002). In this way, not only fairness, but also workplace comity and morale are well-

served.

B.

The Supreme Court in U.S. Airways v. Barnett has given further guidance on a

disabled employee’s right to receive reassignment under the ADA. In Barnett, a disabled

employee who could not be accommodated in his present position, claimed a legal right to

reassignment to a mailroom position, even though reassignment to said position would

have contravened his employer’s long-standing, seniority-based hiring system. The Court

held that “a plaintiff/employee (to defeat a defendant/employer’s motion for summary

judgment) need only show that an accommodation seems reasonable on its face, i.e.,

ordinarily or in the run of cases.” Barnett

(internal quotations omitted).

Under this rule, it denied the employee’s claim, finding that an employer’s disability-

neutral, seniority-based hiring system presumptively trumped the employee’s otherwise

reasonable request for reassignment. Barnett,

.

Elledge argues that his claim for reassignment not only survives Barnett, but that

Barnett actually requires it. To do so, Elledge reads Barnett as articulating an almost sui

generis exception—the well-entrenched, seniority-based hiring system—to a general ADA

18 norm requiring reassignment where no other reasonable accommodation is possible.

Lowe’s best-qualified hiring system, not at all fitting within this niche exception, could

not, says Elledge, have insulated it from its statutory mandate to reassign him to either of

the vacant positions he had identified.

This reading, however, disconnects Barnett’s holding from its reasoning. It recasts

the ADA—a shield meant to guard disabled employees from unjust discrimination—into a

sword that may be used to upend entirely reasonable, disability-neutral hiring policies and

the equally reasonable expectations of other workers. But Barnett’s holding must be

understood in light of the principles undergirding it.

The first principle is Barnett’s articulation of the end, or purpose, of the ADA, which

is naturally read to express some limit on what is required under the ADA’s reasonable

accommodation provision. The end of the ADA is equality of opportunity for disabled

employees. Barnett,

. But that does not in turn mean the end of all

preferences for the disabled. “[P]references will sometimes prove necessary,” the Court

announced, “to achieve the Act’s basic equal opportunity goal. The Act requires

preferences . . . that are needed for those with disabilities to obtain the same workplace

opportunities that those without disabilities automatically enjoy.”

(emphasis in

original). Stated otherwise, Barnett does not require employers to construct preferential

accommodations that maximize workplace opportunities for their disabled employees. It

does require, however, that preferential treatment be extended as necessary to provide them

with the same opportunities as their non-disabled colleagues. Id.; see also, St. Joseph’s

Hospital, 842 F.3d at 1346–47; Huber,

.

19 The other key principle is the value of stability in employee expectations—the third

leg of the stool mentioned above—which the Court invoked as the “most important” reason

justifying the precedence of the employer’s seniority-based system over the disabled

employee’s otherwise valid right to reassignment. Barnett, 535 U.S. at 404–05. The Court

accordingly refused to compel the “substitut[ion of] a complex case-specific

‘accommodation’ decision made by management for the more uniform, impersonal

operation of seniority rules,” thereby undermining “employees’ expectations of consistent,

uniform treatment.”

Such interests are to be jealously guarded insofar as they represent

employees’ personally costly investments in their own careers.

Just as these principles jointly justified the Court in upholding the integrity of the

seniority-based hiring system at issue in Barnett, they justify upholding the integrity of

Lowe’s practices as well. Lowe’s advanced its employees in accordance with a special

kind of best-qualified hiring system. As a way of consistently identifying and promoting

internal talent, Lowe’s merit-based approach examined an employee’s record of experience

and qualifications as well as, for an employee advanced to the next round in the hiring

process, his performance in interview settings. For many of its senior-level positions,

Lowe’s nested within this merit-based system an “Enterprise Succession Management

Process.” This process represented Lowe’s continuous effort to identify talent intra-

departmentally and, by providing special training and attention, to prime its most

competent employees for promotion into the heightened responsibilities of the

department’s director-level positions. This system is, on its face, disability neutral. It

invites, rewards, and protects the formation of settled expectations regarding hiring

20 decisions. And most importantly, it is a reasonable, orderly, and fundamentally fair way

of directing employee advancement within the company. In the ordinary “run of cases,”

reassignment in contravention of such a policy would not be reasonable.

Nor should this result surprise. In Huber v. Wal-Mart Stores, Inc, the Eighth Circuit

found that Wal-Mart’s best-qualified hiring system fell under the same principles as the

seniority-based system in Barnett, and consequently denied reassignment. 486 F.3d at

483–84. Parallel reasoning grounded the same result for the best-qualified system at issue

in EEOC v. St. Joseph’s Hospital (“[r]equiring reassignment in violation of an employer’s

best-qualified hiring or transfer policy is not reasonable in the run of cases.”). 842 F.3d at

1346–47. The hiring policy at issue here, which builds a succession system within a best-

qualified system, falls even more squarely within the ambit of Barnett.

C.

Elledge claims that such a holding would deprive him of the equality of opportunity

Barnett and the ADA guarantee. But the record demonstrates that Lowe’s extended

reasonable accommodations to Elledge, acting at every stage to ensure that his disability

did not unfairly compromise his equality of opportunity at Lowe’s. The light-duty

accommodation provided a reasonable pace and period, given the strenuous demands of

the job, for Elledge to recover from his surgery. Lowe’s offer of a motorized scooter was

reasonably calculated to mitigate the disadvantages of Elledge’s reduction in natural

mobility. The significance of these accommodations, having been extensively discussed

above, will not be dwelt upon further here.

21 What must be added is that Lowe’s also reasonably accommodated Elledge by

directly assisting him with job transition. Reinhart and Dryden, a Director of Human

Resources and a Vice President of Store Operations respectively, had several conversations

with Elledge about alternative career opportunities at Lowe’s. They also agreed to network

on his behalf regarding any and all positions in which he might express an interest.

Reinhart and Dryden were senior-level employees; their time was valuable to Lowe’s but

they rightly devoted a non-trivial portion of it to help Elledge identify and approach new

opportunities at the company. When Elledge did submit his applications to the

Merchandising Director of Lawn and Garden and Managing Director of Outdoor Power

Equipment positions, he did so through the same process as every other employee. The

face of the record, then, shows many examples of Lowe’s proactively working to ensure

that Elledge did not, despite his disability, receive anything less than “the same workplace

opportunities” as other, non-disabled employees. Barnett, 535 U.S at 397. 1

Elledge, however, claims that his applications were disadvantaged on account of his

disability, proven indirectly by his losing both positions to men of inferior qualification.

But again, even drawing the reasonable inferences in Elledge’s favor, this claim is without

a sound basis in the record.

For purposes of the present appeal, both positions share the same relevant

qualifications, which include: (1) four years of experience in retail merchandising; (2)

1 The accommodations listed in this and the prior paragraph should suffice to lay to rest Elledge’s claim that Lowe’s failed to act in good faith or to provide Elledge with an adequate degree of interactive process. 22 experience working within the relevant category; (3) negotiating with vendors; (4)

overseeing “Product Line Review,” which requires evaluation of vendors and of product-

line performance; and (5) identifying and driving new product opportunities. Taken

together, these qualifications indicate the importance of possessing a deep practical

understanding of the relevant product category.

For the Lawn and Garden directorship, Elledge points to the handful of isolated

experiences with lawn and garden that he accumulated over the course of his almost two

decades at Lowes. But these do not support an inference that Elledge’s application was

disadvantaged because of his disability. Ryan Lane, who ultimately received the offer, had

been identified as a prime candidate for that position through the Lawn & Garden

department’s succession planning system, which means that Lowe’s had recognized his

product-area potential and invested in training him specifically to fill future vacancies in

that department’s directorships. That was in keeping with the company’s policy and the

incentives and expectations fostered by intra-departmental advancement.

As for the Outdoor Power Equipment directorship, Elledge’s alleged experience in

the relevant product category was even less robust. He provided little evidence of direct

experience in merchandising, evaluating, or negotiating over products in the outdoor power

equipment line. Chad Sanders, whom Lowe’s ultimately hired for the position, did not

possess significantly more experience with outdoor power equipment than Elledge, but he

did surpass Elledge in other relevant respects. Namely, he was the founder of Lowe’s

Assistant Leadership Development program and directed leadership development at the

company for over five years. Again, given this disparity between the two applicants in an

23 area so central to a directorship position, it is not reasonable to infer that Lowe’s deprived

Elledge of an equal opportunity to compete for the position because of his disability. The

reasonable inference is, instead, that Lowe’s, in a perfectly legitimate exercise of its

discretion, found that Sanders’ unique strengths and experiences better qualified him to

serve in that position at the time the hiring decision was made. See St. Joseph’s Hosp.,

n.5.

It is also worth noting here that Reinhart and Dryden informed Elledge about and

encouraged him to accept a manager-level role. These positions would not be as well

remunerated as Managing Director of Stores, but their responsibilities would be lighter and

the jobs themselves easier to obtain. Such a position could have served as a track for

Elledge to gain new and valuable experience that would return him to the directorship level,

this time in a position more suited to his condition. Elledge declined because of the

prospective reduction in compensation, which was, of course, his prerogative. But it cannot

be said that Lowe’s shunted Elledge off to an early retirement without attempting to

provide him meaningful opportunities to continue his working relationship with the

company.

We do not write broadly. On the facts and record before this court, however, Elledge

simply cannot claim that Lowe’s was an employer indifferent to the requirements of the

ADA. To the contrary, the company met at multiple turns the statute’s core obligation of

providing reasonable accommodation to the employee, and we thus affirm the trial court’s

ruling.

24 IV.

Elledge claims that Lowe’s removal of him from the MDS position and its rejection

of his job applications violated the ADEA. In order to prove a prima facie case that a

removal violated the ADEA, Elledge must show inter alia that he was qualified for his job.

Reeves v. Sanderson Plumbing Products, Inc.,

(2000). As the foregoing

demonstrates, however, Elledge was not able to perform the essential functions of his MDS

job with or without reasonable accommodations. This inability bars his prima facie case

on removal.

Making a prima facie case that an unfavorable hiring decision offended the ADEA

requires a similar showing, namely that “the position . . . was filled by a similarly qualified

applicant who was substantially younger than the plaintiff.” Laber v. Harvey,

(4th Cir. 2006). For the reasons noted in the preceding section, Elledge’s

competitors each possessed certain unique qualifications that Elledge lacked, qualifications

it was not at all pretextual or discriminatory for Lowe’s to weigh in filling the positions at

issue.

V.

For the foregoing reasons, we shall affirm the judgment of the district court.

AFFIRMED

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