United States District Court, D. Columbia.
For EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff: Edward O'Farrell Loughlin, LEAD ATTORNEY, EQUAL EMPLOYMENT, OPPORTUNITY COMMISSION, Washington, DC.
For HOWARD UNIVERSITY, Defendant: Alan S. Block, Dawn Star Singleton, LEAD ATTORNEYS, BONNER KIERNAN TREBACH & CROCIATA, LLP, Washington, DC.
AMY BERMAN JACKSON, United States District Judge.
Plaintiff the Equal Employment Opportunity Commission (" EEOC" ) brings this action on behalf of Clarence Muse, alleging that defendant Howard University violated Title I of the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. § 12101 et seq. (2012) (" ADA" ), by declining to hire Muse based on his disability. At the time Muse applied to work for defendant, he was suffering from end-stage renal disease and was required to undergo dialysis treatments three times a week. Defendant has moved for summary judgment, contending that its failure to hire Muse was not unlawful because the schedule for Muse's dialysis treatment prevented him from being able to work a flexible three-shift schedule, which defendant claims was an " essential function" of the positions for which Muse applied. Def.'s Mot. for Summ. J. [Dkt. # 14] (" Def.'s Mot." ); Def.'s Mem. of P. & A. in Supp. of Def.'s Mot. [Dkt. # 14-1] (" Def.'s Mem." ). Plaintiff opposed that motion. Pl.'s Mem. of P. & A. in Supp. of Pl.'s Opp. to Def.'s Mot. [Dkt. # 15-1] (" Pl.'s Opp." ). The Court finds that defendant has offered varying descriptions of what the job entailed and that even if availability for a flexible shift schedule can be deemed to be " essential," there is a genuine issue of material fact in dispute as to whether Muse could have performed that function. So, the Court will deny defendant's motion for summary judgment.
The following facts are not in dispute except where noted. The Equal Employment
Opportunity Commission is the United States agency charged with the enforcement and interpretation of the Americans with Disabilities Act. Compl. [Dkt. # 1] ¶ 3. Clarence Muse is a veteran of the District of Columbia Metropolitan Police Department with over forty years of law enforcement experience. Ex. 3 to Pl.'s Opp. [Dkt. # 15-1]. Muse was diagnosed with Type 2 diabetes in 1986, Dep. of Clarence L. Muse 232:17-19, May 14, 2013, Ex. 4 to Pl.'s Opp. [Dkt. # 15-4] (" Muse Dep." ), which later progressed into end-stage renal disease. Dep. of Anthony D. Bivins, M.D. 42:16-44:6, July 26, 2013, Ex. 5 to Pl.'s Opp. [Dkt. # 15-5] (" Bivins Dep." ). At the time Muse applied to work for defendant, he was required to receive dialysis treatment approximately three days a week in order to " sustain [his] existence." Id. 12:22-13:9; see also Muse Dep. 75:18-76:20. With the exception of a brief period in 2002, Muse's physician never placed him on any type of work restriction. Bivins Dep. 12:1-21.
In 2009, Muse applied for positions as a Protective Services Supervisor (" PSS" ) and Protective Services Officer (" PSO" ) with the unarmed security force of the Howard University Hospital. See Def.'s Statement of Material Facts not in Dispute [Dkt. # 14-2] ¶ 11 (" Def.'s SOF" ); Pl.'s Resp. to Def.'s Statement of Material Facts not in Dispute [Dkt. # 15-2] ¶ 11 (" Pl.'s SOF Resp." ). The written vacancy announcements for the PSS and PSO positions stated that it was a " minimum requirement" that an applicant " be able to work nights, weekends and holidays as well as rotating day and evening shifts as assigned." Ex. 1 to Def.'s Mot. [Dkt. # 14-3] at 2 (PSO position description); Ex. 2 to Def.'s Mot. [Dkt. # 14-4] at 3 (PSS position description). There were three shifts for both jobs: 7:00 a.m. to 3:00 p.m.; 3:00 p.m. to 11:00 p.m.; and 11:00 p.m. to 7:00 a.m. Dep. of Marvin Cooper 144:10-12, May 29, 2013, Ex. 7 to Def.'s Mot. [Dkt # 14-9] (" Cooper Dep." ). Defendant contends that being available to work all three of the shifts was an " essential function" of the PSO and PSS positions. Def.'s Mem. at 9-11.
On August 18, 2009, Muse interviewed for the two security positions. Def.'s SOF ¶ 11; Pl.'s SOF Resp. ¶ 11. Muse was interviewed by Marvin Cooper, who supervised the Department of Protective Services (" DPS" ) at the hospital, and Dr. Glenda Hodges, Cooper's supervisor and the Associate Director of Howard University Hospital at the time. Dep. of Glenda Hodges, Ph.D. 84:3-13, 85:7-17, July 22, 2013, Ex. 8 to Def.'s Mot. [Dkt. # 14-10] (" Hodges Dep." ); see also Cooper Dep. 98:9-12. Hodges had final authority with respect to hiring decisions. Cooper Dep. 93:5-15.
At some point during the interview, Muse told Cooper and Hodges that he received dialysis treatments every Monday, Wednesday, and Friday before noon. Muse Dep. 230:20-231:8; Cooper Dep. 155:18-19, 156:4-8. It is not clear from the record, however, exactly how the information about Muse's dialysis schedule came to light. Cooper testified in his deposition that he reviewed the job descriptions with Muse during the interview, and then Muse informed him that he could only work two of the three shifts because of his dialysis schedule. Cooper Dep. 155:18-19, 156:4-8. Hodges testified that Muse's dialysis schedule came up in the context of Muse's requesting a " light duty" position because " subsequent to the [dialysis] treatment he was washed out."  Hodges Dep.
104:21, 105:15-19, Ex. 8 to Def.'s Mot. And Muse testified that he volunteered the information about his dialysis schedule in response to Cooper's inquiry about whether he would have any trouble getting to work on time, and that Hodges and Cooper then promptly ended the interview. Muse Dep. 140:11-19, 143:10-17. Muse also indicated that he preferred an evening shift on the written job application, which invited candidates to state a shift preference. Ex. 10 to Pl.'s Opp. [Dkt. # 15-10].
Regardless of how the subject of Muse's dialysis arose, it is undisputed that neither Cooper nor Hodges responded to Muse's statement describing his dialysis schedule, or asked any follow-up questions. Muse Dep. 143:10-20; Hodges Dep. 105:20-22, Ex. 8 to Def.'s Mot. And defendant claims that it declined to hire Muse because of his dialysis schedule. Def.'s SOF ¶ 13. In addition, Cooper testified in his deposition that Muse was also not hired because he had stated that he had a lifting restriction, Cooper Dep. 165:1-6, and Hodges testified that Muse was not hired because he requested a " light duty" position that was not available. Hodges Dep. 111:17-19, Ex. 8 to Def.'s Mot. It is undisputed that Muse otherwise had sufficient professional qualifications and experience. See Cooper Dep. 164:15-19; Hodges Dep. 144:12-16, July 22, 2013, Ex. 8 to Pl.'s Opp. [Dkt. # 15-8].
At some point after defendant declined to hire him, Muse filed a charge with the EEOC alleging violations of the ADA by defendant. Compl. ¶ 7. The EEOC filed its complaint on July 19, 2012 [Dkt. # 1], and defendant filed its answer on September 28, 2012 [Dkt. # 3]. The parties conducted discovery and, on October 28, 2013, defendant filed the motion for summary judgment [Dkt. # 14] that is now pending before the Court.
STANDARD OF REVIEW
Summary judgment is appropriate " if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The party seeking summary judgment bears the " initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (internal quotation marks omitted). To defeat summary judgment, ...