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Butler v. Washington Metropolitan Area Transit Authority

United States District Court, District of Columbia

July 31, 2017




         Plaintiff Francis Butler, a longtime bus operator, alleges that his employer, Washington Metropolitan Area Transit Authority (“WMATA”), unlawfully kept him on unpaid leave because of his disabilities-sleep apnea and diabetes-in violation of the Rehabilitation Act. He also claims that, as a reasonable accommodation, WMATA should have reassigned him to a different, vacant position within the organization. WMATA responds that Butler was no longer medically qualified to operate buses, both because his blood-glucose levels were unacceptably high and because he failed to produce required sleep-apnea test results. WMATA also contends that it tried to reassign Butler through an internal job reassignment program, but that the process failed because Butler only applied for positions that were outside of his union's local bargaining unit.

         The Court finds that WMATA has established, beyond reasonable dispute, that Butler's high blood-glucose measurements and his failure to produce sleep-apnea test results rendered him medically unfit for the bus operator position. This defeats Butler's claim that WMATA engaged in unlawful disability discrimination by preventing him from operating buses. However, the Court also concludes that a genuine factual dispute remains regarding whether WMATA's efforts to reassign Butler satisfied its duty to reasonably accommodate his disabilities. Accordingly, the Court will grant in part and deny in part WMATA's Motion for Summary Judgment, and deny Butler's Cross-Motion for Summary Judgment entirely.

         I. Background

         A. Statutory and Regulatory Background

         The Rehabilitation Act of 1973 provides that “no otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability . . . be subjected to discrimination” by any program receiving federal funding. 29 U.S.C. § 794(a). When a lawsuit is filed under Section 794 of the Rehabilitation Act, the statute instructs courts to apply the legal standards used in resolving claims brought under the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101. See 29 U.S.C. § 794(d); see also Drasek v. Burwell, 121 F.Supp.3d 143, 153 (D.D.C. 2015) (applying ADA standards to Rehabilitation Act claim). Under the Rehabilitation Act, a plaintiff must be a “qualified individual with a disability.” 29 U.S.C. § 794(a). To be “qualified, ” he must “with or without reasonable accommodation” be able to “perform the essential functions of the employment position that [he] holds or desires.” 42 U.S.C. § 12111(8). To have a “disability, ” he must possess a “physical or mental impairment that substantially limits one or more major life activities.” 42 U.S.C. § 12102(1)(A).

         The Department of Transportation (“DOT”), through the Federal Motor Carrier Safety Administration (“FMCSA”), has promulgated regulations governing the medical qualifications required for commercial vehicle drivers, including WMATA bus operators. See 49 C.F.R. Parts 300-99 (2016). Under that scheme, WMATA drivers must obtain a DOT medical certification, known colloquially as a DOT Medical Card, 49 C.F.R. § 391.11; 49 C.F.R. § 391.41 & 43, and must undergo periodic physical exams in accordance with the FMCSA regulations in order to keep their certification valid. Def.'s Mem. Supp. Mot. Summ. J. (“Def.'s MSJ”), S.M.F. ¶ 16. Since 2012, regulations have required that these exams be performed “by a medical examiner listed on the National Registry of Certified Medical Examiners.” 49 C.F.R. § 391.43(a).

         The FMCSA regulations also establish standards applicable to the medical conditions underlying this dispute-sleep apnea and diabetes. As relevant to sleep apnea, commercial drivers must have “no established medical history or clinical diagnosis of a respiratory dysfunction likely to interfere with his/her ability to control and drive a commercial motor vehicle safely.” 49 C.F.R. § 391.41(b)(5). The FMCSA “Medical Advisory Criteria” further explain that “[e]ven the slightest impairment in respiratory function under emergency conditions . . . may be detrimental to safe driving, ” and the guidance lists “sleep apnea” as being among those “conditions that interfere with oxygen exchange and may result in incapacitation.” 49 C.F.R. Pt. 391, App. A. Dr. Gina Pervall-who developed WMATA's sleep-apnea program and since 2011 has worked with the DOT Medical Review Board in developing FMCSA regulations-explains that WMATA considers compliant use of a “continuous positive airway pressure” (“CPAP”) machine to be a reasonable accommodation for bus drivers with sleep apnea. Def.'s MSJ, Ex. 16 ¶ 34. Regular use of a CPAP machine is a form of treatment: It “indicates that the employee's sleep apnea is controlled.” Id. Accordingly, under WMATA's recertification guidelines, “at the time of medical recertification, employees with established sleep apnea must provide a six[-]month CPAP compliance report, ” showing that the employee has used the machine for at least four hours per night, for 70% of nights. Id. ¶¶ 18-19; see also Def.'s MSJ, Exs. 9 & 13. Without such a report, the employee may be given a temporary, three- month certification. Def.'s MSJ, Ex. 16 ¶ 18. But if no report is submitted for that three-month period, the employee may be medically disqualified. Id.[1]

         As for diabetes, the regulations state that a driver is physically qualified if he has “no established medical history or clinical diagnosis of diabetes mellitus currently requiring insulin for control.” 49 C.F.R. § 391.41(b)(3). The Advisory Criteria go on to explain that a diabetic “individual may [nevertheless] be qualified” under the rules “[i]f the condition can be controlled by the use of oral medication and diet.” 49 C.F.R. Pt. 391, App. A. However, based on guidance from the American Medical Association and other healthcare accreditation organizations, WMATA considers blood-glucose levels at or above 9.5 percent-as measured by the A1c test[2]-to be indicative of diabetes being “poorly controlled.” Def.'s MSJ, Ex. 3, at 1; see also Def.'s MSJ, Ex. 16 ¶¶ 12-14. As a result, when a driver's A1c level is at or above 9.5, WMATA instructs its medical staff not to certify the driver. See Def.'s MSJ, Ex. 2.

         B. Factual Background

         1. Butler's Failure to Obtain DOT Medical Card Recertification

         Francis Butler was a WMATA bus operator from November 1999 until his retirement on June 1, 2015. Def.'s Statement of Material Fact (“S.M.F.”) ¶ 1. Beginning in 2001 and until his retirement, he was also a member of Local Union 922 of the International Brotherhood of Teamsters. Def.'s MSJ, Ex. 34. Due to a work-related wrist injury, Pl.'s Mem. Supp. Cross-Mot. Summ. J (“Pl.'s Cross-MSJ”), Ex. S, at 9, Butler worked only one year between 2009 and 2014, and was otherwise on unpaid medical leave, at times receiving workers' compensation. Id. at 96. Butler's wrist injury, however, was not his only medical ailment: He had been diagnosed with Type II diabetes by 2010 and severe obstructive sleep apnea by February 2013. Compl. ¶ 21. Butler treated his diabetes with oral medication rather than insulin. Pl.'s Cross-MSJ, Ex. S, at 87-8.

         As noted above, Federal Motor Carrier Safety Administration regulations require WMATA bus operators to undergo periodic physical examinations in order to maintain a valid DOT Medical Card. Def.'s S.M.F. ¶ 14. In December 2012, a WMATA physician's assistant, Diane Ofili, qualified Butler for a three-month DOT Medical Card, Def.'s MSJ, Ex. 5, at 1-2, and later extended the card through June 17, 2013. Def.'s MSJ, Ex. 6.[3] Between June 2013 and April 2014, Butler remained on unpaid medical leave, without a DOT Medical Card. Compl. ¶ 32; see also Def.'s MSJ, Ex. 16 ¶ 21. On February 26, 2014, Butler's personal physician, Dr. Ophnell Cumberbatch, purported to qualify Butler for a DOT Medical Card, good for two years. See Pl.'s Cross-MSJ, Exs. A & C. However, Cumberbatch is not a registered Medical Examiner with the FMCSA, as required by regulation. See Def.'s MSJ, Ex. 21, at 1-3.[4]

         Butler recollects that in the spring of 2014, WMATA informed him that he could return to duty pending a negative drug screening. Pl.'s Cross-MSJ, Ex. S, at 95. On April 22, 2014, Butler visited the WMATA Medical Office for a physical exam, necessary both for drug screening and for DOT Medical Card recertification. Def.'s MSJ, Ex. 16 ¶ 24. The examination included a blood test, which revealed Butler's A1c level to be 10.9. Pl.'s Cross-MSJ, Ex. S, at 98-9. Because WMATA does not certify drivers with an A1c level greater than or equal to 9.5, see Def.'s MSJ, Exs. 1 & 2, Butler's DOT Medical Card certification was placed on hold. Def.'s MSJ, Ex. 11.[5] WMATA at least twice instructed Butler-at the April exam and again on May 2-that he would need to provide acceptably low A1c test results in order to obtain his DOT Medical Card. See Def.'s MSJ, Exs. 8 & 10.

         At the exam, Butler also failed to provide a six-month CPAP compliance report, which was required by WMATA's DOT Medical Card recertification policy. Def.'s MSJ, Ex. 16 ¶ 24.[6]Butler insisted at his deposition that the CPAP compliance form was not brought up during the examination. Pl.'s Cross-MSJ, Ex. S, at 101. But on Butler's medical examination form, completed the day of the exam, Ofili wrote that an “OSA [obstructive sleep apnea] letter [was] given” to him, Def.'s MSJ, Ex. 7, and Dr. Pervall attests that, at the exam, Butler was given “compliance report instructions to provide a 90[-]day CPAP compliance report, ” Def.'s MSJ, Ex. 16 ¶ 25. Butler's DOT Medical Card was placed on hold, then, for the additional reason that he had not submitted compliant CPAP reports. Def.'s MSJ, Ex. 16 ¶ 25.

         On August 13, 2014, WMATA's Medical Services and Compliance Branch sent a letter to Butler notifying him that he had been medically disqualified due to his diabetes and sleep apnea, and that to be reinstated, he needed to submit a compliant CPAP report, plus blood test results showing an acceptable A1c level. Def.'s MSJ, Ex. 11. The letter further explained that CPAP compliance required using the machine for “4 or more hours per night with a minimum of 70% usage.” Id.

         2. WMATA's Attempts to Reassign Butler

         The August 13, 2014 notification letter also informed Butler that he had been “approved and referred to the Office of Human Resources services for Section 16L alternate job placement.” Def.'s MSJ, Ex. 11. The 16L program is a job placement program for medically disqualified Local Union 922 WMATA employees. Def.'s MSJ, Ex. 18, at 13. Employees may apply for positions for which they consider themselves qualified, but 16L applicants are not given any special preference. Pl.'s Cross-MSJ, Ex. U, at 14. Moreover, absent an agreement between the bargaining units, Local 922 employees are not placed in positions designated for employees belonging to other WMATA bargaining units-including Local 689, the largest such unit. Id. at 15.[7]

         On August 19, 2014, Ms. Roslyn Rikard-who manages the 16L program-sent a letter to Butler confirming that he had been referred to the 16L program for assistance in job reassignment. Def.'s MSJ, Ex. 17. Rikard also enclosed a list of internal job listings, and advised Butler that it was his responsibility to contact her monthly with medical updates. Id. Rikard was aware of Butler's medically disqualifying conditions. Pl.'s Cross-MSJ, Ex. S, at 104-05; Pl.'s Cross-MSJ, Ex. T, at 37. Butler recalls meeting with Rikard for monthly check-ins during his time in the program (apparently until June of the following year). Pl.'s Cross-MSJ, Ex. S, at 75. Ms. Rikard disputes Butler's recollection: She remembers meeting with him only a couple of times over the same period. Pl.'s Cross-MSJ, Ex. T, at 41. Throughout Butler's participation in the 16L program, Rikard would periodically send him job postings through email. Pl.'s Cross-MSJ, Ex. S, at 55, 76. Butler recalls being sent job applications for open positions, but he did not meet the qualifications for at least some of those spots. Pl.'s Cross-MSJ, Ex. S, at 106. In particular, Butler recalls submitting applications for the following positions: Special Police Officer, Mail Room Clerk, Traffic Controller, Custodian, Storeroom Clerk A, Customer Information Specialist, and Facilities Maintenance Clerk. Pl.'s Cross-MSJ, Ex. S, at 111-13.[8] Butler did not receive responses to these applications, and by his telling, Rikard merely told him to keep trying. Pl.'s Cross-MSJ, Ex. S, at 80. Ms. Rikard does not recall ever having a conversation with Butler about the jobs he was interested in or for which he had applied. Pl.'s Cross-MSJ, Ex. T, at 46.

         According to Butler, he assumed he was not receiving responses to his job applications because members of Local Union 689 had preference over the majority of the positions for which he applied, and Butler was associated with Local Union 922. Pl.'s Cross-MSJ, Ex. S, at 134. When an employee wants to move into a position for which another union has preference, representatives from the two unions meet to determine whether to grant the request. Pl.'s Cross- MSJ, Ex. T, at 81. According to Rikard, this is a union policy, not a WMATA policy. Id. at 81; Def.'s MSJ, Ex. 18, at 82. When an employee transfers from one bargaining unit to another, he or she starts from the bottom of the seniority scale, notwithstanding his participation in the 16L program. Id. at 82. Rikard noted that she would generally inform employees about the need to speak with a union official when such situations arose. Id. at 84.

         3. Butler's CPAP Reports

         In September 2014, Butler provided WMATA a medical report showing his A1c level to be approximately 8.3, which by WMATA's standard, is considered “controlled.” Def.'s S.M.F. ¶ 36. Butler nevertheless remained medically disqualified because he had not produced a compliant CPAP report. Def.'s MSJ, Ex. 16 ¶ 28. Butler attributes the lack of a report to an inability to pay his household electricity bill, which in turn prevented him from using his electric CPAP machine. Def.'s MSJ, Ex. 20, at 25, 51-52. During this time Butler stayed at relatives' homes but did not bring the CPAP machine with him; Butler claims he did not want to “press [his] luck” by receiving free housing and using his relatives' electricity. Def.'s MSJ, Ex. 20, at 53.

         When Butler informed Rikard about his purported lack of access to electricity, and asked her whether WMATA had battery-powered CPAP devices, she indicated that she was unaware of that option and provided no follow-up on the matter. Def.'s MSJ, Ex. 20, at 52; Pl.'s Cross-MSJ, Ex. S, at 70, 78, 105. WMATA's Medical Office generally does not supply CPAP machines, which are typically covered by medical insurance. Def.'s MSJ, Ex. 16 ¶ 33. Butler never ...

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