United States District Court, District of Columbia
CORWYN W. HATTER, Plaintiff,
S. CHUTKAN, United States District Judge.
Corwyn Hatter brings this case under the Rehabilitation Act
of 1973, 29 U.S.C. § 701 et seq., alleging that
Defendant WMATA discriminated against him on the basis of his
disability when it refused to hire him and refused to provide
him with a reasonable accommodation. (See Am. Compl.
¶¶ 34-64 (ECF No. 5)). Defendant has moved for
summary judgment. (ECF No. 18). For the reasons stated
herein, Defendant's motion is DENIED.
applied for a bus operator position with WMATA in December
2009. (Hatter Decl. ¶ 2 (Pl. Ex. 1)). In February 2010,
Sonya Carr, a WMATA human resources employee, invited
Plaintiff to proceed to the next stage of the application
process by taking a written test. (Id. ¶¶
3-4; Pl. Ex. 2 (E-Mail from S. Carr)). Following completion
of this test, WMATA extended a conditional offer of
employment to Plaintiff in March 2010. (Hatter Decl. ¶
5; Pl. Ex. 3 (Letter from L. Lott)). Plaintiff was informed
that he was required to undergo a medical examination prior
to receiving a full employment offer, and he completed the
examination three days after receiving the conditional offer.
(Hatter Decl ¶¶ 5, 6). During this examination,
Plaintiff was notified that his blood pressure was elevated
and that a follow-up examination would be required.
(Id. ¶ 7). Following his follow-up examination
in April 2010, Plaintiff was ordered to complete a separate
evaluation for sleep apnea at his own expense within ten
days. (Id. ¶¶ 8, 10). Plaintiff alleges
that Carr informed him, once before his sleep apnea test and
once after, that he would be disqualified from employment if
he had any form of sleep apnea. (Id. ¶¶
12, 15). He underwent the sleep apnea evaluation in early May
2010, and the results showed that he had moderate obstructive
sleep apnea. (Id. ¶¶ 13-14). He took a
second test in early June that showed improvement but still
indicated that he had sleep apnea. (Id. ¶ 14).
Plaintiffs sleep apnea tests, he chose not to submit the test
results to WMATA. (Id. ¶ 16). As a result of
his failure to complete the medical certification process,
Plaintiff was declared medically disqualified from the bus
operator position, and was ultimately not hired. (Def. Ex. 8;
Pervall Aff ¶¶ 19-20 (Def Ex. 3)). Plaintiff
subsequently filed a complaint with the Equal Employment
Opportunity Commission (“EEOC”) and the Prince
Georges County Human Relations Commission in October 2010.
(See Pl. Exs. 8, 9). In July 2012, and again in May
2013, the EEOC concluded that it was more likely than not
that WMATA had violated the ADA by requiring Plaintiff to
undergo a sleep apnea test and for failing to hire him. (Pl.
Ex. 10). Finally, in May 2014, Plaintiff was issued a Notice
of Right to Sue letter by the EEOC, and he filed this suit in
August 2014. (Id.). Following this court's
denial of Defendant's motion to dismiss (ECF No. 10), the
parties completed discovery and Defendant moved for summary
judgment (ECF No. 18).
SUMMARY JUDGMENT STANDARD
judgment is appropriate where there is no disputed genuine
issue of material fact and the movant is entitled to judgment
as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986). In determining
whether a genuine issue of material fact exists, the court
must view all facts in the light most favorable to the
nonmoving party. See Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587-88 (1986) (citing
United States v. Diebold, Inc., 369 U.S. 654, 655
(1962)). The movant must rely on materials in the record to
demonstrate the absence of any genuinely disputed issues of
material fact. Fed.R.Civ.P. 56(a); Celotex Corp.,
477 U.S. at 332. The nonmoving party, in response, must
present his own evidence beyond the pleadings to demonstrate
specific facts showing that there is a genuine issue for
trial. Celotex Corp., 477 U.S. at 324. A fact is
material if “a dispute over it might affect the outcome
of a suit, ” and an issue is genuine if “the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Holcomb v.
Powell, 433 F.3d 889, 895 (D.C. Cir. 2006) (quoting
Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248
(1986)) (internal quotation marks omitted). The non-movant is
“required to provide evidence that would permit a
reasonable jury to find” in his or her favor.
Laningham v. U.S. Navy, 813 F.2d 1236, 1242 (D.C.
Cir. 1987) (citations omitted).
the Rehabilitation Act of 1973, “no otherwise qualified
individual with a disability . . . shall, solely by reason of
her or his disability . . . be subjected to discrimination
under any program or activity receiving Federal financial
assistance.” 29 U.S.C. § 794(a). Claims brought
under the Rehabilitation Act are analyzed under the familiar
burden-shifting framework of McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). See McGill v.
Munoz, 203 F.3d 843, 845 (D.C. Cir. 2000) (citing
Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1288 (D.C.
Cir. 1998) (en banc)). Under this framework, the plaintiff
has the initial burden of proving, by a preponderance of the
evidence, a prima facie case of discrimination. Tex.
Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248,
252-53 (1981). To establish a prima facie showing in this
context, Plaintiff must demonstrate that he had or was
perceived to have a disability, he applied for an available
position, he was “otherwise qualified, ” and his
non-selection gives rise to an inference of discrimination.
See McDonnell Douglas, 411 U.S. at 802;
Chinchillo v. Powell, 236 F.Supp.2d 18, 23 (D.D.C.
2003) (stating prima facie elements under
Rehabilitation Act claim).
plaintiff establishes a prima facie case, the burden shifts
to the defendant to “articulate some legitimate,
nondiscriminatory reason” for the employer's
action. Burdine, 450 U.S. at 252-53. If the
defendant meets this burden, then the burden reverts to the
plaintiff to offer evidence raising a question of fact as to
whether the employer's reason was merely a pretext for
discrimination. Id. at 253. Here, the parties do not
dispute that Plaintiff applied for employment with WMATA,
that he had sleep apnea, or that WMATA perceived him to have
sleep apnea, and they also do not dispute that sleep apnea is
a disability under the Act. The court must therefore first
determine whether Plaintiff was qualified for the position,
and if so, whether he has offered sufficient evidence from
which a reasonable jury could conclude that Defendant's
explanation that it did not hire him due to his failure to
complete the medical certification process was merely a
pretext for discrimination against his disability.
the Rehabilitation Act, a qualified individual is a person
who can “perform, ‘with or without reasonable
accommodation, ' ‘the essential functions of the
employment position that such individual holds or
desires.'” Solomon v. Vilsack, 763 F.3d 1,
5 (D.C. Cir. 2014) (quoting 42 U.S.C. § 12111(8));
see also 29 C.F.R. § 1614.203(b) (applying
standards under the Americans with Disabilities Act to claims
under the Rehabilitation Act). Defendant argues that
Plaintiff was not qualified under the Act because WMATA, and
Department of Transportation regulations, required that bus
operators complete a medical certification and he failed to
do so. However, here Defendant overstates the
“otherwise qualified” element of the prima facie
showing, which requires only that Plaintiff demonstrate he
was able to perform “the essential functions of the
employment position.” The bus operator job posting,
attached as an exhibit to Defendant's motion, contains a
section helpfully labeled “Essential Functions, ”
which clearly states that the essential functions of the bus
operator position include operating a commercial passenger
bus, conducting routine bus inspections, submitting accident
and incident reports, communication with customers, et
cetera. (Def. Ex. 9 at 1-2). Completion of a medical
certification is not an “essential function” of
the position. To the extent Defendant argues that the
certification is a prerequisite for one of the listed
functions, such as operating the passenger bus, Defendant has
not presented any evidence that Plaintiff could not obtain
this certification, and there is no evidence the Plaintiff
could not operate a bus. Indeed, the only evidence in the
record on this point strongly suggests that Plaintiff was
able to perform these essential job functions, as he had
previously worked as a commercial passenger bus driver, and,
more significantly, WMATA actually extended to Plaintiff a
conditional offer for the position. (Def. Ex. 2 at 4 (Hatter
Dep.); Pl. Ex. 3 (Contingent Offer Letter)). Because there is
no dispute of fact in the record as to whether Plaintiff
could perform the essential job functions of the position,
with or without a reasonable accommodation, the court
concludes that Plaintiff has sufficiently established a prima
facie case of discrimination.
burden next shifts to Defendant to articulate a legitimate
explanation for its decision not to hire Plaintiff. Defendant
argues it declined to hire Plaintiff because he failed to
complete the required medical certification process. Under
the Rehabilitation Act, employers may assert as a defense
that they used qualification standards that are
“job-related and consistent with business
necessity” in determining who to hire, 42 U.S.C. §
12113, and Defendant contends that its medical certification
procedure is such a qualification standard. Moreover, under
the U.S. Department of Transportation's Federal Motor
Carrier Safety Regulations, operators of commercial vehicles
must obtain medical certification prior to operating such a
vehicle, 49 C.F.R. § 391.41(b)(5), and Defendant asserts
that Plaintiff's medical examination was part of the
process of obtaining this certification. It is undisputed
that Plaintiff began WMATA's medical certification
process and underwent two physical exams but did not submit
the medical results after a follow-up sleep apnea study.
Defendant states that this failure to submit his results and
complete the process is the reason Plaintiff was not hired.
Defendant has articulated a legitimate explanation for its
decision, the burden shifts back to Plaintiff to offer
evidence from which a reasonable jury could conclude that
Defendant's explanation is merely pretext and that
Defendant was actually motivated by discrimination against
Plaintiff's disability. As evidence, Plaintiff submits
his own sworn declaration in which he states that Sonya Carr,
a WMATA human resources employee, told him that he
“would be disqualified from the Bus Operator position
if [his] test results showed that [he] had any form of sleep
apnea, ” and again in a follow-up conversation stated
that he would be disqualified if he was determined to have
sleep apnea. (Hatt Decl. ¶¶ 12, 15 (Pl. Ex. 1)).
Defendant characterizes this declaration as
“self-serving, ” it does not dispute that Carr
made these statements to Plaintiff. Instead, Defendant
submits the affidavit of Dr. Gina Pervall, a contractor
occupational health physician with WMATA, who states that
“[t]he WMATA Medical Services and Compliance Branch has
final say on all applicants needing medical
certification” and “an applicant is not
automatically medically disqualified from employment”
due to a sleep apnea diagnosis. (Pervall Aff. ¶¶
14-15 (Def. Ex. 3)). It may be the case that this is
WMATA's policy, but Dr. Pervall's declaration fails
to rebut Plaintiff's declaration that Carr-a WMATA human
resources employee-twice told him that a sleep apnea
diagnosis would disqualify him for the position. A reasonable
jury could therefore determine that Defendant's ...