United States District Court, District of Columbia
CHRISTOPHER R. COOPER UNITED STATES DISTRICT JUDGE.
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.
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
Statutory and Regulatory Background
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).
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.
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.
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-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.
Butler's Failure to Obtain DOT Medical Card
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.
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. 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.
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.
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.
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.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
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%
WMATA's Attempts to Reassign Butler
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.
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. 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
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.
Butler's CPAP Reports
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.
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