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DOES v. DISTRICT OF COLUMBIA

May 6, 1997

JOHN DOES I-IV, Plaintiffs,
v.
DISTRICT OF COLUMBIA, Defendant.



The opinion of the court was delivered by: FRIEDMAN

 This matter came before the Court for a hearing on defendant's motion for summary judgment. Having considered all the papers filed by the parties and having heard argument on the motion, the Court concludes that there are genuine issues of material fact in dispute requiring a trial on plaintiffs' claims. The Court therefore will deny defendant's motion.

 I. BACKGROUND

 This case raises the issue of whether the District of Columbia Fire Department has a policy of impermissibly discriminating against job applicants on the basis of psychological or emotional disabilities. Plaintiffs claim that the District of Columbia denied them employment as firefighters on the basis of perceived mental disabilities in violation of the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., and in violation of 42 U.S.C. § 1983. *fn1" Plaintiffs also claim that the District has violated Section 794(d) of the Rehabilitation Act by administering pre-employment medical examinations.

 When plaintiffs applied to the D.C. Fire Department, they, like all firefighter candidates, were required to complete certain pre-employment mental examinations, including the Minnesota Multiphasic Personality Inventory-2 ("MMPI-2"), a sentence completion test, a figure drawing test and a clinical interview. Pls.' Opp'n, Ex. E., Deposition of Dr. Jack Raher at 64-65. On the basis of plaintiffs' test results, Dr. Jack Raher, the chief psychiatrist of the District Police and Fire Clinic, determined that there was "a basis for concern" in hiring plaintiffs. Consistent with normal procedure, Dr. Raher referred each plaintiff to psychologists for further evaluation. Id. The additional evaluations were conducted by clinical psychologists employed by the District of Columbia, Dr. Michael Barnes and Dr. Dorothy Holmes. These psychologists administered the Wechsler Adult Intelligence Scale-Revised test, the Rorschach ink blot test, the Human Figure Drawing test, the Bender-Gestalt test and another MMPI-2; they also conducted another clinical interview of the plaintiffs. Pls.' Opp'n, Ex. B, Letters from Michael E. Barnes, Ph.D., and Dorothy E. Holmes, Ph.D. to Dr. Jack Raher (Jan. 18, 1990; July 9, 1992; May 21, 1992).

 After the second round of tests and clinical interviews, the District denied each plaintiff employment, giving as the sole reason for plaintiffs' rejection the judgment that they were "psychiatrically disqualified." Pl.'s Opp'n, Ex. D, Letter from James W. Flowers to John Doe I (March 25, 1991), Letter from Gerald E. Lewis to John Doe III (July 27, 1992), Letter from Gerald E. Lewis to John Doe IV (May 29, 1992).

 II. DISCUSSION

 A. Summary Judgment Standard

 Under Rule 56, Fed. R. Civ. P., summary judgment should be granted if the pleadings, depositions, answers to interrogatories, admissions on file and affidavits show that there is no genuine issue of material fact in dispute and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). Material facts are those "that might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). In considering a motion for summary judgment, the "evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255; see also Washington Post Co. v. U.S. Dept. of Health and Human Services, 275 U.S. App. D.C. 101, 865 F.2d 320, 325 (D.C. Cir. 1989).

 The non-moving party's opposition, however, must consist of more than mere unsupported allegations or denials and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The non-moving party is "required to provide evidence that would permit a reasonable jury to find" in its favor. Laningham v. U.S. Navy, 259 U.S. App. D.C. 115, 813 F.2d 1236, 1242 (D.C. Cir. 1987). If the evidence is "merely colorable" or "not significantly probative," summary judgment may be granted. Anderson v. Liberty Lobby, Inc., 477 U.S. at 249-50.

 Considering all of the evidence in the light most favorable to the plaintiffs, the Court concludes that there are genuine issues of material fact in dispute regarding each of plaintiffs' claims.

 B. Counts One and Two: Violations of the Rehabilitation Act and Section 1983

 The Rehabilitation Act defines an individual with a disability as "any person who (i) has a physical or mental impairment which substantially limits one or more of such person's major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment." 29 U.S.C. § 706(8)(B). A "major life activity" is defined as a function "such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 45 C.F.R. § 84.3(j)(2)(ii). In this case, plaintiffs argue that the District "regarded" them as having mental impairments that substantially limit their ability to work.

 The District maintains that it did nothing in violation of the Rehabilitation Act because it never regarded plaintiffs as having any mental impairments. Alternatively, the District argues that even if the District did regard plaintiffs as having mental impairments, it did not consider such mental impairments to substantially limit any of plaintiffs' major life activities, including work. The District's chief psychiatrist, Dr. Jack Raher, maintains that he never considered any of the plaintiffs as "psychiatrically disabled." Def.'s Mot. for Summ. J., Ex. 1, Deposition of Dr. Jack Raher at 123. The District contends that plaintiffs have offered no evidence to dispute ...


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