The opinion of the court was delivered by: Richard W. Roberts United States District Judge
Plaintiff Glenn Kersey has sued his employer, defendant Washington Metropolitan Area Transit Authority ("WMATA" or "the Authority"), for violations of the Rehabilitation Act, which prohibits discrimination "solely by reason of . . . his disability." 29 U.S.C. § 794(a) (2000). He alleges that WMATA discriminated and retaliated against him by denying him promotions in 1993 and 1995. WMATA denies discriminating or retaliating against Kersey and has moved for summary judgment, contending that Kersey's claims are time-barred, that he has not made a prima facie case of disability discrimination and that he has not rebutted the legitimate, nondiscriminatory reasons WMATA has offered for its actions. The magistrate judge concluded that there were material facts in genuine dispute and recommended that the summary judgment motion be denied.*fn1 WMATA filed objections, triggering this de novo review. 28 U.S.C. § 636(b)(1). Because there is no genuine dispute that WMATA acted in accord with the 1990 contract it made with Kersey and that it did not modify or rescind the 1990 contract during the relevant period, Kersey's claims are barred as untimely.*fn2 Even if the claims were timely filed, because Kersey has not offered any evidence to rebut WMATA's legitimate, nondiscriminatory reasons for its actions, WMATA is entitled to judgment as a matter of law. Accordingly, WMATA's motion for summary judgment will be granted.
Kersey began his employment with WMATA in 1979. In 1980, he got into a physical fight with three bus passengers, injuring his neck and back, and went on workers compensation leave status. (Pl.'s Opp'n to Def.'s Mot. for Summ. J. ("Pl.'s Opp'n") Exs. 2, 4; Def.'s Mot. for Summ. J ("Def.'s Mot.") Exs. 2, 3.) In September 1988, while Kersey was still on workers compensation leave from WMATA but working as a truck driver for another employer, he became embroiled in a fight with two WMATA employees on WMATA property. He was arrested and charged with assault and carrying a deadly weapon. (Def.'s Mot. Ex. 2.) A month later, an internal WMATA memorandum noted that Kersey failed to report this arrest to WMATA, establishing cause sufficient for dismissal.*fn3 (Id.) A subsequent WMATA "file" memorandum written by WMATA Regional Director Monte Monteith concluded that:
After discussing this case with Robert Dickerson from the Labor Relations Office, it was my opinion that Mr. Kersey had never been requalified for a position with the Authority. The case was referred to Dr. O'Donnell. On January 26, 1989, she wrote a memo which, in part, stated she had "no medical basis to reconsider" her "former decision of medical disqualification." Therefore, Mr. Kersey's name should be dropped from the roles of the Authority. Due to Mr. Kersey's past and current record of violent physical confrontations, which led to his arrest, he should not be given any consideration in the future should he apply for employment with the Authority in any capacity. (Def.'s Mot. Ex. 5.) A January 31, 1989 personnel action report signed by Monteith and appending Monteith's file memorandum terminated Kersey because "Operator Kersey has been medically disqualified by the Authority's Medical Director." (Pl.'s Opp'n Ex. 11A). A copy was sent to Kersey. (Id. Exs. 1 ("Kersey Dep.") at 201:14-17, 1B.) Two weeks after Kersey was terminated, a jury acquitted Kersey of the criminal charges stemming from the September 1988 incident. (Id. Ex. 9.)*fn4 Shortly after that, in March 1989, Kersey filed a union grievance protesting his termination. (Id. Ex. 1B.)
Eddie Kornegay, the union local's president, began negotiating on Kersey's behalf with Leroy Bailey, WMATA's Assistant General Manager and Monteith's superior. Kornegay testified in his deposition that Bailey's sole concern during these negotiations was Kersey's "record or a history . . . of seeming to somewhat have a temper and getting himself involved in altercations or confrontations and [Bailey] was most concerned about that. And the last incident involved or [was] alleged to have involved a weapon and [Bailey] was most concerned about that and that was the big hurdle that we was ---- that I was wrestling with with Leroy [Bailey]." (Id. Ex. 7 ("Kornegay Dep.") at 57:7-18.) As a result of the discussions, WMATA, "considering re-employing [Kersey] to a position other than Bus Operator," asked Dr. Mary O'Donnell, WMATA's Medical Director, "to determine if [Kersey] is physically qualified to work in other job classifications within the Authority." (Id. Ex. 6K.)
Dr. O'Donnell reported that Kersey was "in good health and medically cleared for employment." (Id. Ex. 6M.) She later testified that she did not evaluate Kersey at this time for the position of bus operator because she had not been asked to do so, and that she evaluated him only with respect to other positions potentially available to him as a member of Union Local 922, not all jobs within the Authority. (Id. Ex. 6 ("O'Donnell Dep.") at 113-14.)
In March 1990, WMATA offered a re-employment contract in settlement of Kersey's 1989 termination grievance. The contract stated in relevant part:
The Authority Medical Director has determined that Mr. Kersey is medically cleared for any position except bus operator. Therefore, in full and final settlement of this grievance, the Authority will reinstate Mr. Kersey to a position of cleaner-shifter with the understanding that he will only be permitted to clean buses and under no circumstances will he be permitted to operate an authority vehicle.
(Id. Ex. 12A ("the 1990 contract").)*fn5 Kersey signed the contract on April 23, 1990, and Kornegay signed for the union. (Id.) The next month, Kersey also signed a memorandum of understanding ("1990 MOU") that specified that
[a]s a Cleaner-Shifter, you will be assigned to . . . cleaning bus interiors or other cleaning assignments which may be deemed appropriate by your Division Manager. You will receive Cleaner-Shifter wages at the prevailing rate for the remainder of your career with the Authority. You will not be permitted to operate an Authority vehicle (revenue and non-revenue) under any circumstances. (Id. Ex. 20D.) Bailey later testified that he insisted on the driving prohibition in the 1990 contract because, in light of Kersey's record of physical confrontations, he wanted to avoid putting Kersey in a position that required him to interact with the public. (Id. Ex. 12 ("Bailey Dep.") at 12:18 - 13:1 (stating that Kersey's "record bears out that he has had problems dealing with people" and that "I did not believe that it was in anyone's best interest return him to a position that would provide him interface with the public."), 55:16-20 (stating that it was "absolutely correct" that the reason for the driving prohibition was to prevent Kersey from interacting with the public).) In addition to Kornegay's congruent testimony (see Kornegay Dep. at 57:7-18), Lloyd Shands, a WMATA Division Supervisor, gave testimony consistent with Bailey's explanation. Shands testified that he learned from Bailey in the 1991 to 1994 time frame that the restriction was imposed to ensure that Kersey was in a "non-safety sensitive" position, meaning a position that would avoid having Kersey "deal with the general public." (See Pl.'s Opp'n Ex. 14, ("Shands Dep.") at 15:11-25, 16:21; see also id. at 17:1-18, 21:13-20.)
Within six months of entering into the 1990 contract and signing the 1990 MOU, Kersey attempted to apply for a promotion to a position that would require driving an Authority vehicle. (Def.'s Ex. 9 ("Pl.'s Resp. to Inter. No. 8").) WMATA refused to allow Kersey to take the promotional exam, explaining that because the 1990 contract provided that under no circumstances would Kersey be permitted to operate an authority vehicle, "it would be futile to allow Mr. Kersey to participate in the job test process knowing that he is precluded from operating Authority vehicles." (Pl.'s Opp'n Ex. 7E.) Because all mechanic positions require some driving of WMATA vehicles incidental to the job (id. Ex. 16 ("Briscoe Dep.") at 6:2-4; Bailey Dep. at 13:2 - 14:16 (testifying that mechanics must occasionally drive vehicles and in so doing interact with the public, and providing examples)), WMATA maintained that the 1990 contract's driving prohibition disqualified Kersey from all such positions.
In fact, the cleaner-shifter position held by Kersey under the 1990 contract normally requires incidental driving, but the express terms of the 1990 contract assigned Kersey exclusively to the cleaner duties and prohibited any driving of Authority vehicles. The union's position on this point, which remained consistent over time, was that the driving required of mechanics was so incidental to the position that the 1990 contract's driving prohibition should not be applied to those positions. (Kornegay Dep. at 116:12 - 117:24 (discussing mechanic positions).)
In April 1991, Kersey wrote again to Kornegay, "requesting your immediate actions" to assist in reversing the "unjust and unfair" "contractual agreement." (Pl.'s Opp'n Ex. 7F.) Kornegay did not support Kersey in this effort because he "had very real problems with this," since the union had engaged in "protracted negotiations" and had "signed off on an agreement that put . . . Kersey back on the payrolls with the Authority." (Kornegay Dep. at 95:19-23.) Kornegay explained that "I had the integrity of the local unions to be concerned about . . . . I don't sign agreements and start attacking them the next day. I told [Kersey] my concerns of that." (Id. at 95:23-25, 98:13-14.) Later that same month, Kersey filed an EEOC charge of discrimination based on handicap, medical history, and retaliation. (Pl.'s Opp'n Ex. 19.) Kersey continued to press the union (id. Exs. 7G, 7H) for help to "undo the 1990 agreement" (Kornegay Dep. at 99:8, 99:23-24), but without immediate relief. (Id. at 99:10, 99:24.)
In July 1992, Kersey applied for a promotion to steam cleaner but was not permitted to complete the process because of the 1990 contract clause prohibiting driving an Authority vehicle. (Pl.'s Resp. to Interrog. No. 8.) Within the next month or so, Bailey authored an undated "DRAFT" document with respect to that particular steam cleaner position. (Bailey Dep. at 83:3-7.) The draft agreement included the following conditions:
1. Mr. Kersey must possess a valid Maryland
Commercial Drivers License or obtain one within thirty (30) calendar days from the date he is promoted to steam cleaner position.
2. Mr. Kersey shall only be permitted to operate Metrobuses when it becomes necessary to move a vehicle from its parking area for steaming and return such vehicle after completion of work. Such driving shall be restricted to Landover Division Lot only.
3. This agreement applies only to the Steam
Cleaner position and is not intended to provide any further promotional opportunities unless specified through agreement with the local union.
This agreement becomes effective on the date of acceptance by Local 922 International Brotherhood of Teamsters. (Pl.'s Opp'n Ex. 1C.) Bailey later testified that this was the first time he was willing to consider giving Kersey the opportunity to test for a position that required driving a WMATA vehicle (Bailey Dep. at 82:21 - 83:13), and the driving was to be restricted to an area that eliminated the possibility that Kersey would interact with the public. (Pl.'s Opp'n Ex. 1C.) The record does not establish that the union ever accepted this proposal.
In November 1992, Kersey applied for promotion to a mechanic position and was not notified that he was eligible to test for it. (Pl.'s Resp. to Inter. No. 8.) On September 28, 1993, Kersey filed another union grievance, this time alleging discrimination ---- without specifying the type of discrimination ---- due to the 1990 contract. (Pl.'s Opp'n Ex. 7I.) In October 1993, Kersey again applied to test for a promotion to a mechanic position and, as had happened the year before, he did not receive notice that he was eligible to take the examination. (Pl.'s Resp. to Inter. No. 8.) Kersey then filed a disability discrimination charge with the EEOC on November 12, 1993, complaining that he was denied training and promotion opportunities due to a signed agreement. (Def.'s Mot. Ex. 15.)
In January 1994, Kersey, Kornegay and another union representative, Ferline Buie, met with Bailey and another WMATA supervisor to discuss Kersey's latest grievance. (Pl.'s Opp'n Ex. 21 ("Buie Dep.") at 17:25 - 18:2.) At this meeting, the union asked that Kersey be medically re-evaluated, and WMATA agreed. (Id. at 22:9-11.) Later, Bailey explained that he was willing in 1994 to "revisit" the driving prohibition in the 1990 contract because over time, his view of duties appropriate for Kersey had become less restrictive, but that his change in opinion was not based on any medical justification. (Bailey Dep. at 82:6-18.) The next month, a different WMATA Medical Director concluded that
[b]ased on extensive review of his medical records available, ergonomic analysis of his job as a Bus Operator and based on Dr. Nelson's medical report of Nov. 3, 1986 (which was the basis of the workmans comp decision of a 35% permanent disability rating), I recommend that the Authority should abide by this decision . . . [illegible] and not allow the employee to be exposed to a job such as bus driving that may aggravate or exacerbate a permanent disability. (Pl.'s Opp'n Ex. 6P; O'Donnell Dep. at 147:9 - 148:20.) WMATA did not adopt this recommendation, but instead recommended an independent medical examination. (Pl.'s Opp'n Ex. 7O.) The union engaged Dr. Virgil Balint, who concluded in a report dated July 13, 1994, that Kersey's "history of cervical and upper thoracic sprain/strain, with possible myofascial pain" was "resolved." (Id. Ex. 6Q.) He stated that "I think that at this point the patient is perfectly capable of performing any kind of job, including the job as a bus driver." (Id.) Dr. O'Donnell reviewed and adopted Dr. Balint's report. (O'Donnell Dep. at 153:5-25, 155:8-17, 155:24 - 156:2.)
In December 1994, Bailey authored a memorandum of understanding ("1994 MOU"), drafted for the signatures of Kersey, the union, and WMATA, that stated in pertinent part:
As the result of our most recent discussion relating to Glen Kersey cleaner/shifter . . ., after careful deliberation, I am prepared to rescind current restrictions on Glen Kersey. Mr. Kersey will be permitted to operate Authority vehicles once he obtains a valid commercial drivers License (CDL)[.] He will remain in bus maintenance, but can apply for any position in maintenance for which he can test and subsequently qualify. Mr. Kersey must obtain a CDL within 120 days of this signed agreement. (Def.'s Mot. Ex. 18.) Bailey acknowledged that this was an "offer" presented to the union (Bailey Dep. at 89:4), and that "[i]f this had been agreed to, it would have allowed [Kersey] to test for any job in the [union local's] maintenance area[,]" that is, "mechanic positions." (Id. at 89:25 - 90:6.) The record establishes that this 1994 MOU was forwarded to the union. (Id. at 90:7-11). However, as with the 1992 draft agreement, the record does not establish that the union ever accepted this MOU.*fn6
In August 1995, Kersey complained of his limited advancement opportunities to his new second-line supervisor, Gerald Hobbs. To understand the situation and its background, Hobbs initiated discussions with both WMATA and union personnel, first setting up a meeting with Kornegay to discuss modifying Kersey's 1990 contract. When Hobbs went to the meeting on August 16, 1995,
Kornegay was not present and Hobbs met with two other union officials. (Pl.'s Opp'n Ex. 15 ("Hobbs Dep.") at 32:2-24.) On August 18, 1995, Hobbs learned from Dr. O'Donnell that "there was no medical reason for limits on any job" for Kersey. (Id. at 25:18.) Hobbs next discussed the matter with Dickerson, in WMATA's Labor Relations office, on August 21, 1995. Dickerson assumed responsibility for broaching the subject with the union, and noted that back pay and seniority were two issues that would have to be negotiated.*fn7 (Id. at 25:19 - 26:5; 27:5-15.) Hobbs drafted a document to address the back pay and seniority issues, proposing that WMATA "would allow Mr. Kersey to go through central training, to be re-qualified to drive a bus if he would not pursue any back pay and his seniority would fall in line with the contract statement and then [WMATA] would give him promotional opportunities." (Id. at 27:20-25; see also id. at 29:6-11 (elaborating on the proposed terms).) On September 1, 1995, Dr. O'Donnell documented that Kersey was cleared medically to work without restriction as a cleaner-shifter or mechanic ---- positions that require driving a bus. (O'Donnell Dep. at 157:3 -158:6; Pl.'s Opp'n Ex. 6R.). WMATA permitted Kersey to take the examinations for promotions to mechanic positions that were posted in September and November 1995. (Pl.'s Resp. to Inter. No. 8; Hobbs Dep. at 12:7-10.) Although he passed the tests and was otherwise entitled to the promotion, Kersey was denied the promotion for the express reason that his 1990 employment contract prohibited him from driving an Authority vehicle. (Pl.'s Resp. to Inter. No. 8; Hobbs Dep. at 12:11 - 14:6.) On an unspecified date in 1995, identified in the record only as "sometime later" than the conversation Hobbs had with Dickerson on August 21, 1995, Dickerson told Hobbs that Dickerson had discussed the matter with Kornegay, and that Kornegay had declined to pursue modifying Kersey's 1990 contract. (Hobbs Dep. at 29:14-25 (identifying the date as "sometime later" than August but still in 1995.)
In October 1996, Kersey filed another EEOC charge alleging disability discrimination and retaliation, identifying the first act of discrimination as occurring on April 23, 1990, the date he signed the 1990 contract with the driving prohibition. On November 22, 1996, Kersey filed this lawsuit alleging that the promotion denials in 1993 and 1995 constituted disability discrimination and retaliation.
On a motion for summary judgment, "[t]he inquiry performed is the threshold inquiry of determining whether there is a need for a trial ---- whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). Summary judgment may be granted only where the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); Burke v. Gould, 286 F.3d 513, 517 (D.C. Cir. 2002). A material fact is one that is capable of affecting the outcome of the litigation. Liberty Lobby, 477 U.S. at 248. A genuine issue is one where the "evidence is such that a reasonable jury could return a verdict for the nonmoving party," id., as opposed to evidence that "is so one-sided that one party must prevail as a matter of law." Id. at 252. A court considering a motion for summary judgment must draw all "justifiable inferences" from the evidence in favor of the non-movant. Id. at 255. The nonmoving party, however, must do more than simply "show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, the non-movant must "come forward with 'specific facts showing that there is a genuine issue for trial.'" Id. at 587 (citing Fed. R. Civ. P. 56(e)) (emphasis in original). In the end, "the plain language of Rule 56(c) mandates the entry of summary judgment . . . against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The Rehabilitation Act prohibits discrimination "solely by reason of her or his disability" against an "otherwise qualified individual with a disability." 29 U.S.C. § 794(a). To establish a prima facie case of disparate treatment under the Rehabilitation Act, a plaintiff must demonstrate that he is (1) a handicapped person within the meaning of the Act, (2) who is qualified to perform the essential functions of the job with or without reasonable accommodation, and (3) has suffered an adverse employment action because of the handicap. Scarborough v. Natsios, 190 F. Supp. 2d 5, 19 (D.D.C. 2002). The Act also prohibits retaliation for engaging in activities to preserve or enforce one's rights under the Act. Duncan v. WMATA, 214 F.R.D. 43, 49-50 (D.D.C. 2003) (concluding that the Rehabilitation Act prohibits retaliation by incorporation of the American with Disabilities Act). To establish a prima facie case of retaliation under the Rehabilitation Act, a plaintiff must show that (1) he engaged in statutorily protected activity, (2) the employer was aware of the activity, (3) the plaintiff suffered an adverse employment action, and (4) there was a causal connection between the protected activity and the adverse employment action. Id. at 50.
A plaintiff bringing discrimination or retaliation claims under the Rehabilitation Act may employ the burden-shifting framework approved in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973) in aid of his case when the defendant denies that its actions were motivated by the plaintiff's disability. McGill v. Munoz, 203 F.3d 843, 845 (D.C. Cir. 2000); Barth v. Gelb, 2 F.3d 1180, 1186 (D.C. Cir. 1993) (noting that the burden-shifting framework may be appropriate in suits where the defendant disclaims reliance on the plaintiff's handicap). Under the McDonnell Douglas framework, "[f]irst, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant 'to articulate some legitimate, nondiscriminatory reason for the employee's rejection.'" Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981) (quoting McDonnell Douglas, 411 U.S. at 802). If the defendant offers a legitimate, nondiscriminatory reason for its actions, and the plaintiff fails to provide evidence which could lead a jury reasonably to doubt the defendant's reasons, then the plaintiff cannot survive summary judgment. Carter v. George Washington Univ., 387 F.3d 872, 881 (D.C. Cir. 2004). This is so because "[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Burdine, 450 U.S. at 253.
The parties agree that Rehabilitation Act disability discrimination claims have a three-year limitations period,*fn8 and that retaliation claims under the Act have a four-year limitations period.*fn9 They disagree, however, on when the claims in this case arose.
Kersey alleges that he was wrongly excluded from promotion opportunities sometime in late 1993 and then denied a promotion that was rightfully his in 1995. Without addressing the distinct elements of each claim, Kersey argues that each act constituted both disability discrimination and retaliation. (See Pl.'s Opp'n at 25-29 (failing to distinguish between the discrimination and retaliation claims except to note the different limitation periods.) He contends that he had three years from being notified sometime in late 1993 that he was ineligible for a promotion to file a disability claim, and four years from that date to file his retaliation claim (id. at 25, 29), and concludes that his lawsuit was timely filed on November 22, 1996.
WMATA counters that if Kersey has any claims arising from the enforcement of the 1990 contract, they arose on April 23, 1990, when Kersey signed the contract that imposed the driving prohibition that he now attacks as illegitimately discriminatory. WMATA contends that on these facts, Kersey had until April 23, 1993, to file his disability discrimination claims, and until April 23, 1994, to file any retaliations claims. WMATA concludes that all claims were time-barred when Kersey filed this action in November 1996.
The parties' divergent positions turn on the single question of whether WMATA modified or rescinded the 1990 contract at some later point. Unless WMATA rescinded or modified the driving prohibition, then the limitation periods began on April 23, 1990, when Kersey accepted the 1990 contract for re-employment, because the promotion denials ---- whether couched as discrimination or retaliation ---- were a "delayed, but inevitable consequence" of the express terms of that contract. Del. State Coll. v. Ricks, 449 U.S. 250, 257-58 (1980). In Ricks, the Supreme Court held that a cause of action challenging a decision that was to have future effects accrues "at the time the . . . decision [is] made and communicated . . . . That is so even though one of the effects of the [decision] . . . [does] not occur until later." Id. at 258. "It is simply insufficient for [a plaintiff] to allege that his [promotion denial] 'gives present effect to the past illegal act and therefore perpetuates the consequences of forbidden discrimination.'" Id. at 258 (quoting United Air Lines, Inc. v. Evans, 431 U.S. 553, 558 (1977)). Yet, Kersey clearly states that his action is based on "WMATA's continued reliance on the April 23, 1990 agreement." (Def.'s Mot. Ex. 10, Pl.'s Supplemental Resp. to Third Set of Inter. No. 2 at 10.) Under the rule in Ricks, if WMATA did no more than apply the terms of the 1990 contract, then in order for Kersey to allege discrimination in being denied promotions, he would have to allege and prove that his promotion denials "differed discriminatorily" from the promotion denials of others who were under a similar driving prohibition.*fn10 Id. at 258. Kersey has not done so. If, however, as Kersey argues here, WMATA modified or rescinded the 1990 contract at some subsequent point, then the rule of Ricks is inapposite and Kersey's cause of action accrued at some later date, raising the possibility that his lawsuit was timely filed.
Kersey states that he is challenging "promotion denials in 1993 and 1995 for Mechanic jobs after being permitted to test for those jobs [because] WMATA's actions in permitting Mr. Kersey to test for jobs that require operation of a WMATA vehicle effectively modified the 'no driving' restriction." (Pl.'s Opp'n at 1; see also id. at 13.) Kersey variously argues that the 1990 contract's driving prohibition was modified or rescinded either by agreement (id. at 13, 15, 16, 19) or by WMATA's conduct. (Id. at 1, 20-21). Specifically, he asserts that through Bailey, WMATA agreed in 1992 to allow Kersey "to apply for positions that required him to drive a WMATA vehicle" (id. at 13; see also id. at 1, 16, 20-21), and agreed in December 1994 to allow Kersey to take promotional tests for any position other than bus operator. (Id. at 19, 21.) He also argues that when WMATA permitted Kersey to take ...