                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

                                             )
CORWYN W. HATTER,                            )
                                             )
              Plaintiff,                     )
                                             )
      v.                                     )             Case No. 14-cv-1470 (TSC)
                                             )
WMATA,                                       )
                                             )
              Defendant.                     )
                                             )

                                  MEMORANDUM OPINION

       Plaintiff 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.

I.     BACKGROUND

       Plaintiff 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


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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).

       Following Plaintiff’s 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).

II.    SUMMARY JUDGMENT STANDARD

       Summary 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




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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).

III.    DISCUSSION

        Under 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. Muñoz, 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




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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).

       Once a 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.

       Under 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




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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.

       The 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.




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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.

       Because 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)).

       Though 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




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apnea diagnosis would disqualify him for the position. A reasonable jury could therefore

determine that Defendant’s stated explanation for not hiring Plaintiff—that he was not hired only

because he failed to complete the certification process by submitting the medical results—was

merely a pretext for discrimination against Plaintiff due to his disability.

       The court further notes that Plaintiff’s unrebutted evidence of the statements made by

WMATA’s human resources staff is especially troubling. In passing the Rehabilitation Act,

Congress expressly wrote that “individuals with disabilities continually encounter various forms

of discrimination in such critical areas as employment . . . [and] the goals of the Nation properly

include the goal of providing individuals with disabilities with the tools necessary to . . . achieve

equality of opportunity, full inclusion and integration in society, employment, independent

living, and economic and social self-sufficiency, for such individuals.” 29 U.S.C. § 701(a)(5),

(6). Plaintiff alleges, and WMATA does not dispute, that WMATA’s own human resources staff

articulated to Plaintiff an explicitly discriminatory hiring practice for applicants with sleep

apnea, and then, after he chose not to proceed with the process because he had been told

repeatedly that he would be disqualified, Defendant now attempts to hide behind Plaintiff’s

failure to complete the process to assert he was not qualified and cannot establish a

discrimination claim. Defendant, like any employer, cannot evade liability under federal civil

rights laws in this way. Such a practice, if proven, would subvert the very purpose of our

nation’s civil rights protections, perpetuate the pervasive discrimination against individuals with

disabilities that Congress expressly sought to remedy, and would lead to unacceptable results.

       In sum, based on the record presented with the parties’ filings, the court concludes that

Plaintiff has established a prima facie showing of disability discrimination under the

Rehabilitation Act and further concludes that there remains a question of fact as to whether




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Defendant’s offered explanation for its decision was merely pretext for discrimination. The

court therefore DENIES Defendant’s motion.

IV.    CONCLUSION

       For the foregoing reasons, Defendant’s motion for summary judgment is DENIED.



Date: March 27, 2017

                                            Tanya S. Chutkan
                                            TANYA S. CHUTKAN
                                            United States District Judge




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