                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA
____________________________________
                                    )
EQUAL EMPLOYMENT                    )
OPPORTUNITY COMMISSION,             )
                                    )
                  Plaintiff,        )
                                    )
      v.                            )                Civil Action No. 12-1186 (ABJ)
                                    )
HOWARD UNIVERSITY,                  )
                                    )
                  Defendant.        )
____________________________________)


                                 MEMORANDUM OPINION

       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.

                                       BACKGROUND

       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).



                                                2
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.” 1 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



1      Neither party has included any testimony from Muse himself about whether or not he
made a request for light duty, nor do they discuss this alleged request in their pleadings. But
defendant’s motion for summary judgment does not depend on the resolution of this issue.
                                               3
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. 2 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. 3 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


2       Defendant contends that the EEOC should be bound by its statement in the complaint that
during the interview, “Muse was asked by Defendant’s Associate Hospital Director for Support
Services whether there were any times Muse could not be scheduled for work,” and that “Muse
replied that he was not available before noon on Mondays, Wednesdays, and Fridays, and that he
would prefer evening shifts.” Compl. ¶ 11; Def.’s Reply at 1 n.1. But Muse’s sworn deposition
testimony characterizes his statement differently, and at summary judgment, the Court must
consider “the total circumstances of the case,” not just the complaint, which was filed by the
agency, not Muse himself. See Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1291 (D.C. Cir. 1998)
(en banc).

3      It is not clear from the pleadings or from the record exactly when Muse filed his
discrimination charge or what the charge alleged.
                                                 4
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 (1986) (internal quotation marks omitted). To defeat

summary judgment, the non-moving party must “designate specific facts showing that there is a

genuine issue for trial.” Id. at 324 (internal quotation marks omitted). “A party asserting that a

fact cannot be or is genuinely disputed must support the assertion” in one of two ways: either by

“citing to particular parts of materials in the record, including depositions, documents, . . . [or]

affidavits or declarations,” or by “showing that the materials cited do not establish the absence or

presence of a genuine dispute.” Fed. R. Civ. P. 56(c)(1)(A)–(B).

       The existence of a factual dispute is insufficient to preclude summary judgment.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). A dispute is “genuine” only if a

reasonable fact-finder could find for the non-moving party; a fact is only “material” if it is

capable of affecting the outcome of the litigation. Id. at 248; Laningham v. U.S. Navy, 813 F.2d

1236, 1241 (D.C. Cir. 1987). In assessing a party’s motion, the court must “view the facts and

draw reasonable inferences ‘in the light most favorable to the party opposing the summary




                                                 5
judgment motion.’” Scott v. Harris, 550 U.S. 372, 378 (2007) (alterations omitted), quoting

United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam).

                                           ANALYSIS

       The Americans with Disabilities Act makes it unlawful for an employer to “discriminate

against a qualified individual on the basis of disability in regard to . . . hiring.” 42 U.S.C.

§ 12112(a).    A “qualified individual” is someone “who, with or without reasonable

accommodation, can perform the essential functions of the employment position.”                  Id.

§ 12111(8). But the ADA does not require employers to hire applicants who are “unable to do

the job, even though a handicap lies at the root of that inability.” Gillen v. Fallon Ambulance

Serv., Inc., 283 F.3d 11, 29 (1st Cir. 2002); see also Weigert v. Georgetown Univ., 120 F. Supp.

2d 1, 14 (D.D.C. 2000) (“‘[H]andicap discrimination laws protect only those who can do their

job in spite of their handicap, not those who could do it but for their handicap.’”), quoting Fields

v. Lyng, 705 F. Supp. 1134, 1136 (D. Md. 1988). Thus, a person is only “qualified” for a

position if he can fulfill that position’s “essential functions.” 42 U.S.C. § 12111(8); see also

Hancock v. Wash. Hosp. Ctr., -- F. Supp. 2d --, No. 10-cv-487(RLW), 2014 WL 60288, at *2

(D.D.C. Jan. 7, 2014); Weigert, 120 F. Supp. 2d at 14. “Whether an individual is ‘qualified’ for

a job may at times present a pure question of law to be resolved by the court, but it may also . . .

be a question of fact that must be resolved by a fact-finder at trial.” Swanks v. Wash. Metro.

Area Transit Auth., 179 F.3d 929, 934 (D.C. Cir. 1999).

       Plaintiff alleges that defendant discriminated against Muse by failing to hire him on the

basis of his disability and there is no claim that defendant failed to reasonably accommodate him.

See Pl.’s Opp. at 11. So, “[p]utting aside the issue of reasonable accommodation, the two basic

elements of a disability discrimination claim are that (i) the plaintiff suffered an adverse



                                                 6
employment action (ii) because of the plaintiff’s disability.” Adeyemi v. District of Columbia,

525 F.3d 1222, 1226 (D.C. Cir. 2008). In the absence of direct evidence of discrimination,

courts in this Circuit apply “the familiar burden-shifting framework” established in McDonnell

Douglas Corporation v. Green, 411 U.S. 792 (1973). Duncan v. Wash. Metro. Area Transit

Auth., 240 F.3d 1110, 1114 (D.C. Cir. 2001). First, a plaintiff must establish a prima facie case

of discrimination by showing that “he ha[s] a disability within the meaning of the ADA, that he

[is] ‘qualified’ for the position with or without a reasonable accommodation, and that he suffered

an adverse employment action because of his disability.” Swanks, 179 F.3d at 933–34. Then,

the defendant must respond by proffering a “legitimate nondiscriminatory reason” for the

allegedly discriminatory action. Id. at 933, citing Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1289

(D.C. Cir. 1998) (en banc).

       But once a defendant provides its legitimate, non-discriminatory explanation, the “prima-

facie-case aspect” of the plaintiff’s case becomes “irrelevant.” Adeyemi, 525 F.3d at 1226; see

also Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008). At that point, the

only question before the court at the summary judgment stage is “whether the plaintiff produced

sufficient evidence for a reasonable jury to find that the employer’s asserted non-discriminatory

reason was not the actual reason and that the employer intentionally discriminated against the

plaintiff on a prohibited basis.” Adeyemi, 525 F.3d at 1226, citing Brady, 520 F.3d at 493–95.

“The plaintiff’s ‘attack on the employer’s explanation must always be assessed in light of the

total circumstances of the case.’” Weigert, 120 F. Supp. 2d at 6, quoting Aka, 156 F.3d at 1291.

       In this case, defendant does not challenge plaintiff’s assertion that Muse was disabled

within the meaning of the ADA or that he was subjected to the adverse employment action of

non-selection. See 42 U.S.C. § 12102(2)(B) (indicating that an impairment that, like diabetes,



                                                7
disrupts the functioning of the endocrine system constitutes a disability under the ADA); see also

DuBerry v. District of Columbia, 582 F. Supp. 2d 27, 36 n.7 (D.D.C. 2008) (“[F]ailure to hire is

an adverse employment action.”), citing Carter v. George Wash. Univ., 387 F.3d 872, 878 (D.C.

Cir. 2004). But defendant does offer a legitimate, non-discriminatory explanation for its failure

to hire Muse: that Muse’s dialysis schedule rendered him unable to “work nights, weekends and

holidays and rotating day and evening shifts as assigned,” which was an “essential function” of

the PSO and PSS positions. Def.’s Reply to Pl.’s Opp. [Dkt. # 16] at 2, 4–5 (“Def.’s Reply”).

Therefore, defendant argues, its failure to hire Muse did not constitute discrimination under the

ADA. Id. at 14.

       Thus, the question before the Court is whether plaintiff has “produced sufficient evidence

for a reasonable jury to find that [defendant’s] non-discriminatory reason was not the actual

reason and that [defendant] intentionally discriminated against” Muse “on a prohibited basis.”

See Adeyemi, 525 F.3d at 1226. Plaintiff claims that the following material factual issues are in

dispute: (1) whether it was actually an “essential function” of the positions to be able to work

rotating shifts; and (2) whether Muse could have fulfilled that “essential function” in any event.

Pl.’s Opp. at 7–11.

       With respect to the first question, there is legal support for the proposition that the ability

to serve on rotating shifts may be an essential function of certain positions, and it is true that

defendant included a reference to this requirement in its vacancy announcement. And, while

plaintiff has pointed to some inconsistencies in defendant’s evidence, it has failed to come

forward with evidence of its own that would show that there is a genuine issue of material fact on

this point. But the evidence proffered by the defendant is somewhat vague about just what it was

that was going to be expected of the employees who would fill these positions, so it is not clear



                                                 8
that the Court could find that something was essential as a matter of law when it doesn’t quite

know what that thing was. In any event, the Court need not predicate judgment for the defendant

on such a slender reed because it must deny summary judgment on other grounds: there is a

genuine dispute of material fact on the second question. Since plaintiff has come forward with

sufficient evidence for a reasonable juror to conclude that Muse could have performed the

“essential functions” of the jobs – under any of the varying descriptions of those functions – the

Court will deny defendant’s motion for summary judgment.

       An essential function is a “central position requirement[ ]” that “bear[s] more than a

marginal relationship to the job.” Kalekiristos v. CTF Hotel Mgmt. Corp., 958 F. Supp. 641, 660

(D.D.C. 1997), quoting Amariglio v. Nat’l R.R. Passenger Corp., 941 F. Supp. 173, 178 (D.D.C.

1996) (internal quotation marks omitted). 4      Defendant contends that it was an “essential

function” of the DPS positions to be available to work rotating shifts as assigned. And the law is

clear that the ability to work a rotating shift can be an essential function. See, e.g., Kallail v.


4     The EEOC has issued guidance as to what a court should consider when determining
“whether a particular function is essential,” and the relevant factors include:
       (i)     The employer’s judgment as to which functions are essential;
       (ii)    Written job descriptions prepared before advertising or interviewing applicants
               for the job;
       (iii)   The amount of time spent on the job performing the function;
       (iv)    The consequences of not requiring the incumbent to perform the function;
       (v)     The terms of a collective bargaining agreement;
       (vi)    The work experience of past incumbents in the job; and/or
       (vii)   The current work experience of incumbents in similar jobs.
29 C.F.R. § 1630.2(n)(3)(i)–(vii); see also Taylor v. Rice, 451 F.3d 898, 906–07 (D.C. Cir. 2006)
(considering these factors).


                                                9
Alliant Energy Corporate Servs., Inc., 691 F.3d 925, 931 (8th Cir. 2012) (finding a rotating shift

to be essential where the employer contended it allowed it to handle emergencies more

effectively and enhanced the non-work life of all employees); Boitnott v. Corning, Inc., No.

7:06-CV-00330, 2010 WL 2465490, at *9 (W.D. Va. June 15, 2010) (finding a rotating shift to

be essential where the employer explained it allowed for 24-hour coverage, created consistent

work teams, and gave the employer greater flexibility to distribute its workforce).

       But it is less clear that defendant has demonstrated the lack of any genuine dispute on the

question of whether the ability to rotate was essential.       It is undisputed that the vacancy

announcements for the DPS positions stated that it was a “minimum requirement” to “be able to

work nights, weekends and holidays as well as rotating day and evening shifts as assigned.” Ex.

1 to Def.’s Mot. at 2 (PSO position description); Ex. 2 to Def.’s Mot. at 3 (PSS position

description). But the other evidence adduced by defendant includes divergent descriptions of

what that requirement actually entailed.

       Defendant states in its memorandum that “all DPS employees [were] required to be

available at any time they were called and . . . shift preferences were not guaranteed.” Def.’s

Mem. at 3. In its pleadings and through the affidavit of Marvin Cooper, defendant explains that

“[a]ll DPS Officer and Supervisor candidates [we]re required to be available to rotate day and

evening shifts so that DPS [could] maintain security coverage during anticipated call-outs,

vacation time, and shortage[s] of staff,” id. at 10; see also Aff. of Marvin Cooper, Ex. 5 to Def.’s

Mot. [Dkt. # 14-7] ¶ 8 (“Cooper Aff.”), and “to provide for safety/security operations for the 24-

hour business of Howard University Hospital.” Def.’s Mem. at 10; Cooper Aff. ¶ 7. Defendant

contends that having a workforce that was “available to rotate day and evening shifts” also

would enable it “to maintain appropriate levels of skill/expertise/experience in security during



                                                10
each shift.” Def.’s Mem. at 10; see also Cooper Aff. ¶ 9. Cooper further explains in his affidavit

that “[w]hile DPS allowed candidates . . . to provide [their] shift preferences, no candidate was

exempt from rotating day and evening shifts.” Cooper Aff. ¶ 12. So, defendant’s pleading and

Cooper’s affidavit indicate that it was an “essential function” of the DPS positions for employees

to be highly flexible and available to fill in on any shift, at any time, whenever they were called.

          But the testimony of Dr. Hodges paints a somewhat different picture. Hodges was the

Associate Director of the hospital at the time Muse applied, and the person with final hiring

authority. Cooper Dep. 93:5–7. Hodges explained in her deposition that DPS employees were

hired with a “standard shift” assignment, but needed to be available to fill in on other shifts in

case of a scheduling emergency or special circumstance. Hodges Dep. 99:22–100:8, Ex. 8 to

Def.’s Mot. When asked if applicants had “to be available to work all shifts,” Hodges explained

that they could not “have a second full-time job . . . because there were occasions where persons

who were working shifts other than the ones they were assigned were called in for various

reasons.” Id. 99:16–21. Indeed, in the portion of Hodges’s deposition provided by plaintiff,

Hodges stated that an applicant was “[a]bsolutely” permitted to request a standard shift, and that

expressing a shift preference would “[a]bsolutely not” disqualify an applicant from being hired.

Hodges Dep. 99:6–13, Ex. 8 to Pl.’s Opp. Notably, Hodges did not say that it was a job

requirement to be available “at any time” defendant called. See Def.’s Mem. at 3 (emphasis

added).

          Being available to fill in during other shifts on an ad hoc basis is different from being

available to accept a permanent assignment to a rotating schedule, and defendant has not

supplied further information about how often these “occasions” occurred. Moreover, Hodges’s

description of the shift rotation requirement distinguishes this situation from the “essential



                                                 11
function” cases cited by defendant, where employees were assigned to fixed rotating schedules.

See Kallail, 691 F.3d at 927 (explaining that employees “work[ed] in teams of two on nine-week

schedules that rotate[d] between twelve-hour and eight-hour shifts, and day and night shifts,” and

that each week was devoted to different assignments and training exercises); Boitnott, 2010 WL

2465490, at *1 (explaining that employees “work[ed] rotating 12-hour shifts with two weeks of

days followed by two weeks of nights”). So, although the law supports the idea that the ability to

work a rotating shift can be an essential function of a job, the evidence that there was such a

requirement in this case is extremely thin.

       But in response to a summary judgment motion, the onus shifts to the plaintiff, who has

failed come back with any evidence that rebuts the notion that at least some level of scheduling

flexibility was “essential.” Plaintiff attempts to establish the existence of a genuine issue of

material fact by highlighting Hodges’s testimony, and it also proffers the employment

applications of successful candidates for the DPS positions as well as notes taken by EEOC

Investigator James Yao. Plaintiff states that the notes indicate that employees who were hired by

defendant had their preferred shifts accommodated, and that defendant did not actually rotate

employees through shifts. Pl.’s Opp. at 10–11. But none of this evidence creates a dispute of

material fact.

       First, plaintiff supplies portions of Dr. Hodges’s deposition testimony and contends that

they undermine defendant’s claim that DPS employees needed “to ‘be available at any time they

were called.’” Pl.’s Opp. at 10; see also Hodges Dep. 101:1–102:22, Ex. 8 to Pl.’s Opp. It is

true that Hodges’s testimony does not support the notion that employees had to be on call

twenty-four hours a day, as defendant’s pleading seems to suggest. But all that means is that it is

unclear how flexible an employee needed to be, not whether that flexibility was “essential.” The



                                                12
fact that employees were assigned standard shifts and that they were not penalized for being

unavailable to work while on vacation is not completely inconsistent with the requirement in the

vacancy announcement that employees be available to work during other shifts, as assigned, or

that this need to be able to provide coverage when called was “essential.” See Def.’s Mem. at 9;

Cooper Aff. ¶ 6. Therefore, Hodges’s testimony alone does not demonstrate that there is a

genuine issue of material fact in dispute as to whether some availability beyond one’s standard

shift was “essential.”

        Plaintiff also offers the employment applications of seven successful candidates and the

notes of EEOC Investigator Yao to support its contention that “the work experience of past and

present employees . . . contradicts Defendant’s claim that a rotating shift schedule is an essential

job function of the DPS positions.” Pl.’s Opp. at 10. But all the employment applications show

is that some successful candidates, like Muse, stated a preference for a particular shift on their

employment applications.     See Ex. 11 to Pl.’s Opp. [Dkt. # 15-11].         This fact is entirely

consistent with Cooper’s statement that “[w]hile DPS allowed candidates . . . to provide his/her

shift preferences, no candidate was exempt from rotating day and evening shifts.” Cooper Aff.

¶ 12.

        Investigator Yao’s notes supposedly memorialize conversations he had with present and

former DPS employees who, according to plaintiff, gave Yao information that casts doubt on

defendant’s contention that it was “essential” for DPS employees to work a rotating shift. Pl.’s

Opp. at 10–11; see also Ex. 12 to Pl.’s Opp. [Dkt. # 15-12]. But these notes are inadmissible

hearsay evidence, which “‘cannot be considered on a motion for summary judgment.’” Bortell v.

Eli Lilly & Co., 406 F. Supp. 2d 1, 11 (D.D.C. 2005), quoting Wiley v. United States, 20 F.3d

222, 226 (6th Cir. 1994); see also Gleklen v. Democratic Cong. Campaign Comm., Inc., 199 F.3d



                                                13
1365, 1369 (D.C. Cir. 2000) (“While a nonmovant is not required to produce evidence in a form

that would be admissible at trial, the evidence still must be capable of being converted into

admissible evidence. . . .    Otherwise, the objective of summary judgment – to prevent

unnecessary trials – would be undermined.”).

       Yao’s notes are classic hearsay: they contain the out-of-court statements of third parties

and are offered to prove the truth of the matter they assert. See Fed. R. Evid. 801(c). To support

the creation of a genuine issue of disputed fact, plaintiff should have deposed, or obtained

declarations from, employees with knowledge. And Yao’s unsworn, undated notes are also

unreliable, since Yao stated in his deposition that he has no recollection at all of his investigation

of Muse’s case. See Dep. of James S. Yao 91:11–17, May 30, 2013, Ex. 1 to Def.’s Reply [Dkt.

# 16-1].   Thus, the Court finds that Yao’s notes are not capable of being converted into

admissible evidence as required by the federal rules. Moreover, even if employees did tell Yao

that their preferences were accommodated and they did not formally rotate, it could still have

been “essential” to the open positions that an employee be available to cover other shifts on an

ad hoc basis.

       In sum, defendant has failed to delineate this “essential function” with any specificity,

and plaintiff has also failed to demonstrate that a reasonable juror could find that flexibility was

not required. But more important, regardless of the degree of flexibility defendant was seeking,

it has not been established beyond dispute that Muse could not meet the employer’s needs.

Plaintiff has provided evidence that would allow a reasonable juror to conclude that Muse could

have fulfilled the available-as-needed function, and that defendant’s stated reason for failing to

hire Muse was therefore a pretext for disability discrimination. For that reason, defendant is not

entitled to summary judgment in this case.



                                                 14
       Plaintiff’s evidence indicates that at the time Muse applied to work for defendant, he

could have met defendant’s scheduling requirements for the PSS and PSO positions, under any

of the definitions defendant has provided for that function. Dr. Hodges explained that defendant

planned to give DPS employees a “standard shift,” and to assign them to work other shifts on an

as-needed basis. See Hodges Dep. 99:22–100:19, Ex. 8 to Pl.’s Opp. Plaintiff’s evidence shows

that before Muse applied to work for defendant, he worked for five years as a security guard for

a different facility, Covance Medical Laboratory, under a very similar scheduling arrangement.

See Muse Dep. 66:1–3; Ex. 3 to Pl.’s Opp. (Muse’s resume).

       Muse testified in his deposition that Covance security guards worked the same three-shift

schedule as defendant’s PSS and PSO employees: 7:00 am to 3:00 p.m.; 3:00 p.m. to 11:00

p.m.; and 11:00 p.m. to 7:00 a.m. Muse Dep. 69:12–15. Muse worked a standard shift of 3:00

p.m. to 11:00 p.m. at Covance and, despite his Monday-Wednesday-Friday dialysis schedule, he

filled in to cover other shifts “at least once a week, sometimes more than that.” Id. 74:21–75:7,

77:2–5. Muse stated that he never declined to cover a shift at Covance when he was asked to do

so, id. 74:2–5, that he was never late for work at Covance, id. 107:14–16, and that he never asked

for last-minute leave or some other accommodation for his diabetes or dialysis. Id. 107:17–

108:6. Muse also testified that he was able to change his dialysis appointment time to work

around the scheduling needs of his employer, which he planned to do if hired by defendant. Id.

94:7–22. And all of this testimony is corroborated by a 2009 performance review from Covance

that praised Muse for “volunteering to cover shifts for his teammates who request time off” and

for being “very flexible with his schedule this year working on all three shifts, working on days

Monday-Sunday as needed, working 40 hours or more in a week contrary to his part time status.”

Ex. 9 to Pl.’s Opp. [Dkt. # 15-9] at 5. Faced with all of this evidence, a reasonable juror could



                                               15
conclude that Muse could have fulfilled the “essential function” of being available to “work

nights, weekends and holidays as well as rotating day and evening shifts as assigned” for

defendant.

       Defendant contends, without citation to any authority, that the Court should disregard all

of this evidence because “[t]he relevant inquiry for purposes of summary judgment is what Mr.

Muse told Defendant in the interview process and the basis for Defendant’s decision – not what

Mr. Muse may or may not have been able to do at times before (or after) the interview process.”

Def.’s Reply at 3–4; see also id. at 13 (reiterating that “the crux of the Court’s inquiry here is

what information Mr. Muse provided to Defendant and the basis for Defendant’s decision”)

(emphasis in original). But as plaintiff points out, defendant’s evidence indicates that neither

Cooper nor Hodges asked Muse even one question about his dialysis schedule or his ability to

work the flexible hours that defendant claims were “essential” to the jobs for which Muse

applied. 5 See Hodges Dep. 105:20–22, Ex. 8 to Def.’s Mot. (“Q: Did Mr. Cooper question

[Muse] at all about his dialysis or request for light duty? A: No.”). And although Cooper

testified in his deposition that Muse told him that “he could only work the 3:00 to 11:00 or 11:00

to 7:00” shifts, Cooper Dep. 155:18–19, Muse stated in his deposition that he simply informed


5       The Court notes that there is some authority that suggests that defendant should have
made an “individualized inquiry” into Muse’s ability to perform the “essential functions” of the
jobs before it decided not to hire him. See Keith v. County of Oakland, 703 F.3d 918, 923 (6th
Cir. 2013) (stating that “‘[t]he ADA mandates an individualized inquiry in determining whether
an [applicant’s] disability . . . disqualifies him from a particular position’”), quoting Holiday v.
City of Chattanooga, 206 F.3d 637, 643 (6th Cir. 2000) (first two alterations in original); Gillen,
283 F.3d at 29 (“[T]he evidence must show that the employer understood the nature, extent, and
implications of the prospective employee’s particular impairment, and that the employment
decision reflected that understanding.”). Moreover the ADA “expressly permits employers ‘to
make preemployment inquiries into the ability of an applicant to perform job-related functions.’”
Adeyemi, 525 F.3d at 1229, quoting 42 U.S.C. § 12112(d)(2)(B). Presumably, such an inquiry in
this case would have involved asking at least one question about Muse’s dialysis requirements,
such as whether Muse could be flexible about the time of day in which he received treatment, or
whether his appointments could ever be rescheduled to accommodate a shift change.
                                                16
Cooper and Hodges of his dialysis schedule at the time, figuring that he could work out his

schedule “pretty easily.” Muse Dep. 140:16–141:8.

        Muse certainly could have done more to clarify what he claims he was thinking at the

time of his interview. But a reasonable juror could find that the evidence that Muse could have

fulfilled   defendant’s   “essential    functions”    rebuts   defendant’s   proffered   legitimate

nondiscriminatory reason for failing to hire him. See Aka, 156 F.3d at 1290 (holding that “a

plaintiff’s discrediting of an employer’s stated reason for its employment decision” can be

sufficient “to avoid summary judgment”). Moreover, drawing inferences in favor of the non-

moving party, Cooper’s and Hodges’s failure to ask even one clarifying question about the

ability of an otherwise qualified candidate with a disability to fulfill an “essential function” of

the DPS positions could lead a reasonable juror to conclude that they decided not to hire Muse

based on false assumptions about his disability – which is precisely the type of discrimination

that the ADA was enacted to prevent. See Adams v. Rice, 531 F.3d 936, 954 (D.C. Cir. 2008)

(“Congress enacted the . . . ADA to forbid such blatantly discriminatory actions, intending to

protect . . . [those] who qualify as disabled under the statute from employment discrimination

based on myths, fears, and stereotypes about the [disability].”). 6 And finally, whether Cooper’s

or Muse’s version of what Muse said about his scheduling availability should be believed is

plainly the type of credibility determination that belongs to a jury.


6       The Court also notes that the inference of discrimination could be further strengthened by
the fact that the additional reasons given by Cooper and Hodges for not hiring plaintiff – an
alleged lifting restriction, Cooper Dep. 165:1–6, and request for light duty, Hodges Dep. 111:17–
19, Ex. 8 to Def.’s Mot. – are directly undermined by the deposition testimony of Muse’s
physician, Dr. Bivins. Dr. Bivins testified that, when Muse applied to work for defendant in
2009, he did not have a lifting restriction (although “heavy weightlifting” over “150 to 200
pounds” was not recommended), he was “acclimated” to dialysis and could “do whatever he
wanted to do” after a treatment, and he was encouraged to get exercise. Bivins Dep. 16:3, 20–
21, 17:4–9. Neither party addresses this issue in its pleadings, however, and so the Court does
not factor it into its judgment here.
                                                 17
