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DORCHY v. WASHINGTON METRO. AREA TRANSIT AUTHORITY

February 25, 1999

CHARLES A. DORCHY, PLAINTIFF
v.
WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, DEFENDANT.



The opinion of the court was delivered by: Kay, United States Magistrate Judge.

  MEMORANDUM OPINION AND ORDER

Plaintiff Charles A. Dorchy sued Defendant Washington Metropolitan Area Transit Authority (WMATA), claiming violations of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and of section 794 of the Rehabilitation Act of 1973 ("Rehabilitation Act"), 29 U.S.C. § 701 et seq. The case is before this Court for all purposes, including trial, pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 502. Pending before the Court is Defendant's Motion to Dismiss the Complaint and/or for Summary Judgment [32].*fn1 This Court issued an Order on November 10, 1998 denying the instant motion and indicating that an opinion would follow. This opinion and subsequent Order vacate the Order of November 10, 1998 and modify the holdings therein.

I. BACKGROUND

Mr. Dorchy, who is African-American, has worked for WMATA since 1981. On November 1, 1994, while working as a Class "B Machinist" in the machine shop of the Heavy Overhaul Shop in the Department of Bus Services, Mr. Dorchy suffered a work-related back injury for which he was treated surgically on November 7, 1994. Mr. Dorchy's treating physician, Dr. Cooney, approved his return to work in October 1995 with restrictions and found that he had a "twenty-five percent permanent partial disability of the body as a whole." Mr. Dorchy attempted to return to work in October 1995, but insisted on limiting his job functions to exclude heavy lifting. WMATA refused to allow him to return on those conditions, requiring Mr. Dorchy to be physically able to perform all the tasks of a Class B Machinist. Mr. Dorchy did not return to work until August 7, 1996. He worked until January 27, 1997, when he was again forced to stop working due to his back injury.

Following Mr. Dorchy's unsuccessful attempt to return to work in October 1995, he filed a charge with the Equal Employment Opportunity Commission (EEOC) on November 27, 1995, alleging discrimination based on race and on a disability that occurred on November 6, 1995. The EEOC issued Mr. Dorchy a right-to-sue letter on August 23, 1996, and he filed this action on November 19, 1996.

II. LEGAL STANDARD

WMATA's motion entitled "Motion to Dismiss the Complaint and/or for Summary Judgment of Defendant Washington Metropolitan Area Transit Authority (WMATA)" requests relief under Fed.R.Civ.P. 12(b)(6) and 56. Fed.R.Civ.P. 12(b), addressing, inter alia, failure by a plaintiff to state a claim upon which relief can be granted, directs a court to treat a motion to dismiss as a motion for summary judgment if "matters outside the pleading are presented to and not excluded by the court. . . ." Fed.R.Civ.P. 12(b). See IMS v. Alvarez, 129 F.3d 618, 619 n. 1 (D.C.Cir. 1997). Because the parties submitted and this Court relies in this opinion on matters outside the pleadings of this motion, the Court treats WMATA's motion as a motion for summary judgment.

Fed.R.Civ.P. 56 states that summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (stating that a court may enter summary judgment "against a party who fails to make a showing sufficient to establish the existence of an element essential to the party's case, and on which the party will bear the burden of proof at trial"). In considering a summary judgment motion, the "evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). See Bayer v. United States Dep't of Treasury, 956 F.2d 330, 333 (D.C.Cir. 1992). There is a genuine issue of material fact "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson, 477 U.S. at 248, 106 S.Ct. 2505. "Material" facts are facts in dispute that "might affect the outcome of the suit under the governing law." Id.

III. DISCUSSION

Plaintiff brings two counts of discrimination in his Amended Complaint, one under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and one under the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. See Amended Complaint at 3. Defendant WMATA's motion addresses the three distinct types of discrimination alleged by Plaintiff: 1) WMATA's failure to make a reasonable accommodation for Plaintiff's disability,*fn2 in violation of the Rehabilitation Act;*fn3 2) WMATA's failure to accommodate his injury in October 1995 was based on his race and in violation of Title VII; and 3) WMATA's failure to promote and afford training/preparation for promotions, based on race, in violation of Title VII. See Reply of Defendant WMATA to Plaintiff's Opposition to WMATA's Motion to Dismiss and/or for Summary Judgment at 3, 5, 7 [hereinafter "WMATA Reply"].

A. The Rehabilitation Act

  [t]he standards used to determine whether this section has
  been violated in a complaint alleging employment discrimination
  under this section shall be the standards applied under title
  I of the Americans with Disabilities Act of 1990
  (42 U.S.C. § 1211 et seq.) and the provisions of sections
  501 through 504, and 510, of the Americans with
  Disabilities Act of 1990 . . . as such sections relate to
  employment.

29 U.S.C. § 794(d). 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); see also 29 U.S.C. § 794(a). This language mirrors the definition of "disability" in the ADA. See 42 U.S.C. § 12102(s) (1995). Thus, this Court's analysis of whether Mr. Dorchy can survive a motion for summary judgment of his Rehabilitation Act claim will apply the legal standards and case analysis under the ADA. See Perkins v. St. Louis County Water Co., 160 F.3d 446 (8th Cir. 1998) ("We refer in this opinion only to Mr. Perkins's ADA claim, but the legal principles applicable to it are equally applicable to his Rehabilitation Act claim."); McPherson v. Michigan High Sch. Athletic Assoc., Inc., 119 F.3d 453 (6th Cir. 1997) ("`[B]y statute, the Americans with Disabilities Act standards apply in Rehabilitation Act cases alleging employment discrimination.'"); Pritchard v. Southern Co. Serv., 92 F.3d 1130 (11th Cir. 1996) ("[I]f [Plaintiff] may be found to be disabled under the ADA, then she may be found to be disabled under the Rehabilitation Act.").

The ADA mandates that "[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to . . . 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 defines "discriminate" 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 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); see Aka v. Washington Hospital Ctr., 156 F.3d 1284, 1300 (D.C.Cir. 1998); see also Barnett v. U.S. Air Inc., 157 F.3d 744, 748 (9th Cir. 1998) ("Under the ADA, when an individual has a disability, his or her employer must accommodate the limitations resulting from that disability to the extent an accommodation is `reasonable' and does not unduly burden the employer.").

In order to survive a motion for summary judgment based on ADA analysis, Mr. Dorchy must present direct evidence of discrimination against him based on his disability or he must provide indirect evidence of discrimination by meeting the three-step analysis established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), as explained by this Circuit's opinion in Aka v. Washington Hospital Ctr., 156 F.3d 1284, 1288-94 (D.C.Cir. 1998).

Generally, it is difficult to establish discrimination by direct evidence. See Robinson v. Runyon, 149 F.3d 507, 513 (6th Cir. 1998) ("We are guided in this determination by the reality that intentional discrimination is often difficult to prove without reliance on circumstantial evidence. Rarely will there be direct evidence from the lips of the defendant proclaiming his or her . . . animus."). However, if a plaintiff can provide direct evidence of "discriminatory motive in carrying out its employment decision" by an employer, that plaintiff can survive a motion for summary judgement. See Smith v. Chrysler Corp., 155 F.3d 799, 805 (6th Cir. 1998). "If a plaintiff can provide direct evidence of discriminatory intent, then the employer must prove by a preponderance of the evidence that the same employment decision would have been made in the absence of the discriminatory intent." Standard v. A.B.E.L. Serv., Inc., 161 F.3d 1318, 1329-30 (11th Cir. 1998).

Mr. Dorchy alleges that following his absence from work as a result of his work-related back injury he "attempted to return to work in October, 1995, but was refused." See Plaintiff's Opposition to Defendant's Motion to Dismiss the Complaint and/or For Summary Judgment at 2 [hereinafter "Dorchy Opposition"]. The contention that WMATA "refused" to allow Mr. Dorchy to return to work may raise the specter of intentional discrimination based on Mr. Dorchy's disability. However, Plaintiff's failure to present any evidence to support this allegation necessarily forecloses proof of intentional discrimination. Thus, Mr. Dorchy fails to establish by any direct evidence that WMATA intentionally discriminated against him based on his disability. In the absence of direct evidence that WMATA discriminated against him in violation of the Rehabilitation Act, the Court will now ascertain whether Mr. Dorchy established discrimination by indirect evidence. As noted above, a plaintiff can establish discrimination through indirect evidence and survive a motion for summary judgment based on the analysis outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). This Circuit has explained the McDonnell Douglas framework as follows:

  the complainant must first establish a prima facie case of
  prohibited discrimination. Once he has done so, the burden
  then shifts to the employer to articulate legitimate,
  nondiscriminatory reasons for the challenged employment
  decision. Should the employer succeed in presenting such
  reasons, the burden then shifts back to the complainant,
  who then has an opportunity to discredit the employer's
  explanation. In Texas Department of Community Affairs v.
  Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981),
  the Court held that, in producing nondiscriminatory reasons
  for its challenged action, the employer is not obligated to
  support these reasons with ...

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