DeBORAH K. CHASANOW, District Judge.
Presently pending and ready for resolution in this disability discrimination case is the motion for summary judgment filed by Defendant Washington Metropolitan Area Transit Authority ("WMATA" or "Defendant"). (ECF No. 57). The issues have been fully briefed, and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the following reasons, the motion for summary judgment will be granted in part and denied in part.
Unless otherwise noted, the following facts are uncontroverted. WMATA hired Plaintiff Deborah Harrison-Khatana ("Plaintiff" or "Ms. Harrison-Khatana") in 2002 as a bus operator. (ECF No. 57-1). Sometime in 2007 or 2008, Plaintiff began working as a fare box puller. (ECF No. 57-2, at 2). Fare box pullers retrieve money from the fare boxes of WMATA's Metrobuses. (ECF No. 64-1, at 4).
Plaintiff asserts that she served in the military and was discharged with a permanent disability to her right knee, although she provides no records evidencing her prior military service or medical records indicating a permanent disability in her right knee. During her tenure with WMATA, Plaintiff sustained several on-the-job injuries, for which she sought worker's compensation. For instance, Plaintiff filed a worker's compensation claim on February 10, 2009. (ECF No. 57-3 ¶ 2). Plaintiff states that she injured her left knee in February 2009, "trying to pull out a heavy fare box out of the vault it was heavy, and popping my back, which caused the pain in my leg and my back." (ECF No. 64-2, at 87).
WMATA voluntarily paid Plaintiff compensation from February 11, 2009 to August 14, 2009. (ECF No. 57-3 ¶ 4). WMATA requested that Dr. Louis Levitt ("Dr. Levitt") evaluate Plaintiff in an independent medical examination scheduled for August 4, 2009. (Id. ¶ 5). Dr. Levitt produced a written report opining that Plaintiff was at maximum medical improvement and capable of returning to work immediately as a farebox puller. (ECF No. 57-4, at 3). He stated that "[n]o further treatment is justified as it relate[s] to the 2/10/09 accident." (Id.). Consequently, WMATA discontinued any further temporary total disability payments to her on August 14, 2009, which Plaintiff contested to the Maryland Worker's Compensation Commission. (ECF No. 57-3 ¶ 7). On January 14, 2010, the Commission issued an order granting Plaintiff an additional period of total temporary benefits from August 15, 2009 until November 20, 2009, but denying any temporary total disability benefits thereafter. (Id. ¶ 8). Plaintiff appealed the decision of the Commission, which was affirmed by a jury in the Circuit Court for Prince George's County. (Id.). Plaintiff returned to work full duty, without limitations, on April 7, 2010. (ECF No. 57-15).
Shortly after her return to work, on May 14, 2010, Plaintiff injured her right shoulder in a new worker's compensation accident. (See ECF No. 57-10). Plaintiff received temporary total disability payments from May 15, 2010 until July 27, 2010. (Id.). Plaintiff states that when she returned to work in July of 2010, she was told not to "kneel" the bus, which involves lowering the bus — either the first step of the bus or the platform, depending on the type of bus. (ECF No. 57-2, at 14). Plaintiff maintains that she had a permanent disability in her right knee, and sustained injuries to her left knee and back, conditions which were exacerbated by Defendant's refusal to allow her to kneel the bus. (ECF No. 64-2, at 70-71).
On August 10, 2010, Plaintiff filed a grievance based on a "safety hazard that prevents [her] from do[ing] [her] job duty safely." (ECF No. 57-12, at 1). Plaintiff asserted in the grievance that Mr. Washington, her evening supervisor, told maintenance employees on July 29, 2010 that they could no longer kneel the bus in the service lane. (Id.). She further contends that she had been kneeling the bus since she became a fare puller in 2007 and was told in a safety class that this was an acceptable practice. Plaintiff asserts that she was previously allowed to kneel the bus when she worked in other divisions of WMATA, and blames Summon Cannon for refusing her the ability to kneel the bus and threatening her suspension and termination if she continued to do so. (ECF No. 64-2, at 91-94).
Jacqueline Smith, the superintendent of transportation at the time, testified during her deposition that she met with Plaintiff regarding her August 2010 grievance. She stated that she did not have authority to grant Plaintiff's request to kneel the bus because Mr. Drew was responsible for bus maintenance. (ECF No. 57-13, at 3). She stated, however, that "we would never allow [any] farebox puller to kneel the bus. It's never been done, to my knowledge." (Id.). Summon Cannon testified in his deposition that he denied Plaintiff's August 2010 grievance. He stated:
(ECF No. 57-14, at 4). Mr. Cannon testified that he considered whether Plaintiff's request to kneel the bus could be granted, but ultimately determined that it could not:
(ECF No. 57-14, at 5).
Plaintiff then had a third injury on October 26, 2010, which resulted in another worker's compensation claim; she was "paid compensation for temporary total disability from October 27, 2010 to November 25, 2010." (ECF No. 57-11). Upon her return to WMATA after this third injury, Plaintiff participated in WMATA's light duty program from November 26, 2010 until February 24, 2011, performing clerical and dispatching duties. (ECF No. 57-5). Telores Hill, an employee in WMATA's Return to Work Department, stated in his affidavit that Plaintiff exited the program on February 24, 2011, "as a result of an [independent medical evaluation] opinion in which the doctor opined Plaintiff was then capable of returning to full duty status." (ECF No. 57-5 ¶ 8).
During a court proceeding in 2011, the Manager of Bus Operations at the Four-Mile Run Division, Lucious Rucker, learned that in 2003, Plaintiff had been indicted for filing a false report in an application for federal workers' compensation. (ECF No. 57-6, at 3 & ECF No. 57-7). Plaintiff had entered into a plea agreement with the Government, conceding that she made false statements in written forms to obtain federal workers' compensation. At the time of the events leading to her indictment, Ms. Harrison-Khatana was employed as a labor custodian at the Southern Maryland Bulk Mailing of the United States Postal Service ("USPS"). (ECF No. 57-8). The statement of facts in connection with the plea agreement stated that as a result of Plaintiff having submitted a false worker's compensation form, "in which she stated that she had not worked during the preceding fifteen (15) month period, defendant Harrison-Khatana falsely obtained $20,203.00 in workers' compensation benefits." (Id.).
The parties dispute whether Plaintiff ever disclosed the indictment and plea agreement to WMATA. Defendant maintains that Plaintiff never disclosed this event, in violation of Rule 4.1. of WMATA's Rule and Regulations. Rule 4.1 states:
(ECF No. 57-9). After finding out about the indictment and plea agreement, Mr. Rucker informed his supervisor, Robert Ballard. WMATA terminated Plaintiff on July 13, 2011.
Plaintiff filed a grievance contesting her termination in August 2011. (ECF No. 57-6 at 1). Plaintiff's grievance proceeded through every step of the grievance process, culminating in an arbitration hearing on April 5, 2012. On September 10, 2012, the arbitrator issued a written decision conditionally reinstating Plaintiff. The arbitration decision states that Mr. Ballard ordered Mr. Rucker to conduct an investigation. (Id. at 3). Mr. Rucker concluded that Plaintiff did not report her arrest and plea bargain in 2003 and recommended that she be terminated. Mr. Ballard agreed and Plaintiff was terminated. The arbitrator faulted WMATA for failing to investigate whether Plaintiff ever informed her supervisor during the relevant period about her arrest and indictment, as Plaintiff argued that she had. Plaintiff's reinstatement was conditioned on her fitness for duty, "including her ability to perform the physical requirements of her previous position, when and if she reached that level of ability, and any efforts at mitigating any loss she may have sustained." (Id. at 6).
Plaintiff rejoined WMATA in March of 2013. (ECF No. 57-2, at 7). By the time she returned to WMATA, there was a restructuring and the fare box puller position was reclassified to maintenance, fleet service (E/S). (Id. at 8). Plaintiff testified that the new position encompasses fare box pulling, and added a few additional responsibilities, such as sweeping the bus and steaming the engine. (Id. at 11).
After filing a charge with the Equal Employment Opportunity Commission ("EEOC") On October 21, 2010, Plaintiff received a right to sue letter on September 28, 2011.
On April 29, 2013, WMATA moved for summary judgment. (ECF No. 29). On May 17, 2013, counsel entered an appearance on Plaintiff's behalf (ECF No. 32). Instead of responding to the motion for summary judgment, Plaintiff filed a motion for leave to amend her complaint, attaching an amended pleading in which she sought to raise a claim under the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 701 et seq., and a supplemental claim for intentional infliction of emotional distress. (ECF No. 39). The court issued a memorandum opinion and order on August 27, 2013, granting in part and denying in part the motion for leave to file an amended complaint. (ECF No. 43). The court held that amendment would be futile as to the claim for intentional infliction of emotional distress, but allowed amendment as to the Rehabilitation Act claim premised on WMATA's failure to accommodate Plaintiff by refusing to allow her to kneel the bus. An amended complaint was docketed on September 10, 2013. (ECF No. 45).
Defendant moved for summary judgment on July 7, 2014. (ECF No. 57). Plaintiff opposed the motion (ECF No. 64), and Defendant replied (ECF No. 67).
A motion for summary judgment will be granted only if there exists no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). The moving party bears the burden of showing that there is no genuine dispute as to any material fact. However, no genuine dispute of material fact exists if the nonmoving party fails to make a sufficient showing on an essential element of his or her case as to which he or she would have the burden of proof. Celotex, 477 U.S. at 322-23. Therefore, on those issues on which the nonmoving party has the burden of proof, it is his or her responsibility to confront the summary judgment motion with an affidavit or other similar evidence showing that there is a genuine issue for trial.
Summary judgment is appropriate under Federal Rule of Civil Procedure Rule 56(a) when there is no genuine dispute as to any material fact, and the moving party is plainly entitled to judgment in its favor as a matter of law. In Anderson v. Liberty Lobby, Inc., 477 U.S. at 249 (1986), the Supreme Court explained that, in considering a motion for summary judgment, the "judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." A dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248. Thus, "the judge must ask himself not whether he thinks the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the [nonmoving party] on the evidence presented." Id. at 252.
In undertaking this inquiry, a court must view the facts and the reasonable inferences drawn therefrom "in the light most favorable to the party opposing the motion." Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); see also EEOC v. Navy Fed. Credit Union, 424 F.3d 397, 405 (4th Cir. 2005). The mere existence of a "scintilla" of evidence in support of the non-moving party's case is not sufficient to preclude an order granting summary judgment. See Anderson, 477 U.S. at 252.
A "party cannot create a genuine dispute of material fact through mere speculation or compilation of inferences." Shin v. Shalala, 166 F.Supp.2d 373, 375 (D.Md. 2001) (citation omitted). Indeed, this court has an affirmative obligation to prevent factually unsupported claims and defenses from going to trial. See Drewitt v. Pratt, 999 F.2d 774, 778-79 (4th Cir. 1993) (quoting Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir. 1987)).
In her amended complaint, Plaintiff asserts that Defendant discriminated against her under the Rehabilitation Act by denying her a reasonable accommodation in refusing to kneel the bus beginning in July 2010 and refusing her light duty request.
Plaintiff's discrimination claims arise under the Rehabilitation Act. The Rehabilitation Act prohibits discrimination against an "otherwise qualified individual with a disability . . . solely by reason of her or his disability." 29 U.S.C. § 794(a). There are "three distinct grounds for relief: (1) intentional discrimination or disparate treatment; (2) disparate impact; and (3) failure to make reasonable accommodations." A Helping Hand, LLC v. Balt. Cnty., Md., 515 F.3d 356, 362 (4th Cir. 2008). Plaintiff's claims against WMATA are premised on its alleged failure to accommodate and disparate treatment by termination.
To succeed on her failure to accommodate claim, Plaintiff must demonstrate that: (1) she was an individual who had a disability within the meaning of the statute; (2) that the employer had notice of the disability; (3) she could perform the essential functions of her position with a reasonable accommodation; and (4) the employer refused to provide such accommodations. Wilson v. Dollar Gen. Corp., 717 F.3d 337, 345 (4th Cir. 2013) (citation omitted). "Implicit in the fourth element is the [] requirement that the employer and employee engage in an interactive process to identify a reasonable accommodation." Haneke v. Mid-Atlantic Capital Management, 131 F.App'x 399, 400 (4th Cir. 2005).
As a threshold matter, Defendant contends that Plaintiff cannot establish that she is a "qualified individual with a disability" covered by the Rehabilitation Act because she cannot point to a physical impairment that substantially limited her major life activities. (ECF No. 57, at 12). The parties agree that the relevant time period for purposes of determining disability is July 28, 2010 to October 26, 2010.
Plaintiff counters that she is a disabled veteran with a permanent physical impairment to her right knee. (ECF No. 64, at 7). She states that "[i]n addition to her permanent disability to her right knee, she sustained injury to her left knee, back and lower back in February 2009." (Id. at 8). Plaintiff avers that from July 28, 2010 until October 26, 2010, "her problem with her legs and back substantially limited her work." (Id. at 11). Plaintiff contends that she experienced difficulties climbing the steps to the bus and that she "is unable to work in a broad class of jobs. Moreover, Plaintiff's permanent disability and temporary disability is of long duration and therefore substantially limiting." (Id.).
An "individual with a disability," or handicap is defined as one who:
Rehabilitation Act, 29 U.S.C. § 705(20)(B); 42 U.S.C. § 12102(1)(A)-(C). To support its contention that Plaintiff is not disabled, Defendant largely relies on case-law that predates the enactment of the ADA Amendments Act of 2008 ("ADAAA"), Pub. L. No. 110-325, 122 Stat. 3553 (2008).
"Congress enacted the ADAAA with the express purpose of legislatively overruling the Supreme Court's decisions in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), as well as its predecessor, Sutton v. United AIR Lines, Inc., 527 U.S. 471 (1999), and their progeny." Johnson, 2014 WL 1281602, at *14. Defendant relies on Toyota and Sutton, however, in framing its arguments, failing to acknowledge that amendments to the ADA "liberaliz[ed] the standard used to establish disability under the ADA." Wilson v. Board of Educ. of Prince George's County, No. 12-cv-2092-AW, 2013 WL 3146935, at *6 (D.Md. June 18, 2013). Indeed, "the ADA, as amended by the ADAAA, requires that the "`definition of disability in [the ADA] shall be construed in favor of broad coverage.'" Barrett, 2013 WL 1183363, at *9 (quoting 42 U.S.C. § 12102(4)(A)). In fact, the United States Court of Appeals for the Fourth Circuit has recently concluded that although a district court's holding would have been "entirely reasonable" under Toyota and its progeny, the alleged impairment at issue fell "comfortably within the [ADAAA's] expanded definition of disability." Summers v. Altarum Institute, Corp., 740 F.3d 325, 330-333 (4th Cir. 2014).
As stated, Plaintiff asserts that she has physical impairments which substantially limit one or more of her major life activities. The ADAAA identifies the following "major life activities": "caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentration, thinking, communicating, and working." 42 U.S.C. § 12102(2) (emphases added); Pisani v. Baltimore City Police, No. WDQ-12-1654, 2013 WL 4176956, at *7 (D.Md. Aug. 14, 2013). Plaintiff asserts that during the relevant period, she had physical impairments to her knees and back which substantially limited her in walking and working, both of which are considered major life activities. (ECF No. 64, at 5). Plaintiff provides no evidence from the record to show how her alleged disability in the right knee or injuries to her left knee and back substantially limit her walking abilities. Johnson v. United States, 861 F.Supp.2d 629, 634-35 (D.Md. 2012) (noting that it is the obligation of the parties, not the Court, to locate and cite to the appropriate portions of the record that support the parties' arguments on summary judgment). Merely stating in her opposition to the motion for summary judgment that Plaintiff's disability substantially limited her walking is insufficient to show a qualifying disability. Sanchez v. Vilsack, 695 F.3d 1174, 1178 (10th Cir. 2012) ("[I]t is not sufficient for a plaintiff to identify an impairment and leave the court to infer that it results in substantial limitations to a major life activity."). Plaintiff also asserts that she was limited in working and cites to portions of the record that she believes support this contention. Defendant cites Sutton for the proposition that "[w]hen work is the major life activity under consideration, the statutory phrase `substantially limits' requires a plaintiff, at a minimum, to allege he or she is unable to work in a broad class of jobs." (ECF No. 57, at 11). As noted, however, that case was one that Congress specifically sought to overrule when enacting the ADAAA.
The pre-ADAAA EEOC regulations support Defendant's position:
29 C.F.R. § 1630.2(j)(3)(i) (2010) (emphasis added). The problem for Defendant, however, is that Congress rejected these EEOC regulations that defined the term "substantially limits" as "significantly restricted," finding that this expressed too high a standard for determining disability under the ADA. ADA Amendments Act of 2008, Pub.L. No. 110-325, § 2(a)(8), 122 Stat. 3553; 76 Fed.Reg. 16999 (Mar. 25, 2011). Following the amendment, 29 C.F.R. § 1630.2(j)(1)(i)-(ii) (2012) states, in relevant part:
(emphases added). The applicable version of 29 C.F.R. § 1630.2 does not contain language providing that "substantially limits" requires a restriction in the ability to perform a "class of jobs or a broad range of jobs";
Congress instructed courts "that the primary object of attention in cases brought under the ADA should be whether entities covered under the ADA have complied with their obligations, and . . . that the question of whether an individual's impairment is a disability under the ADA should not demand excessive analysis." ADA Amendments Act of 2008, Pub. L. No. 110-325, § 2(b)(5), 122 Stat. 3553. An individualized assessment is still required to determine "whether an impairment substantially limits a major life activity," however. 29 C.F.R. § 1630.2(j)(1)(iv). Although the term "`[s]ubstantially limits' is not meant to be a demanding standard," the regulations state that "not every impairment will constitute a disability." Id. § 1630.2(j)(1)(ii).
Plaintiff gave the following testimony during her deposition with respect to the impairment in her right knee:
(ECF No. 64-2, at 86) (emphases added). She stated that the Department of Veterans Affairs determined that her right knee was disabled, (ECF No. 64-1, at 9), although other than her deposition testimony, she provides no documentation to substantiate her alleged permanent disability in the right knee. Plaintiff also appears to rely on injuries to her left knee and back — arising from the February 2009 injury — as impairments that substantially limited her major life activity of working. Plaintiff stated that she receives shots in both knees in the form of steroids and also receives a "gel that every month [she has] to take." (ECF No. 64-2, at 29). When asked during her deposition how her alleged disabilities "kept her from doing [] activities," Plaintiff responded: "[j]ust my knees and my back and my job." (Id.). When defense counsel further pressed Plaintiff, she stated:
(Id. at 30-31) (emphases added). Defendant points to aspects of Plaintiff's testimony in which she states that other than experiencing difficulty walking up the stairs in the bus, she was able to perform other aspects of her job; Defendant believes that this testimony confirms that Ms. Harrison-Khatana was not substantially limited in working. (Id. at 67). The crux of Plaintiff's failure to accommodate claim, however, is that she had a disability to her right knee and sustained injuries to her left knee by July 2010, she needed an accommodation in order fully to perform her functions as a fare box puller, that kneeling the bus would have accommodated her alleged disability, and indeed, that she was previously allowed to kneel the bus when she served as a fare box puller, but abruptly was denied this accommodation in July 2010.
In the reply brief, Defendant argues that Plaintiff's "prior right knee injury is irrelevant to this . . . Plaintiff's relevant medical history and short periods of temporary disabilities in this litigation arises out of a string of three workers' compensation claims that occurred in the period starting February 2009, and ending in October 2010." (ECF No. 67, at 2). Defendant's argument is unpersuasive. Plaintiff's history of injuries or alleged permanent disability to her right knee provides evidence as to whether these purported impairments substantially limited her in a major life activity. See Moore v. Marriott Intern., Inc., No. CV-12-00770-PHX-BSB, 2014 WL 5581046, at *7 (D.Ariz. Oct. 31, 2014) ("The record includes evidence that Plaintiff has a history of seizures and that she is substantially limited in several major life activities during a seizure."). Defendant next contends:
(ECF No. 67, at 6; see also ECF No. 67-1).
Whether WMATA regarded her as having an impairment is immaterial, however; Plaintiff provides deposition testimony that she had an actual disability of which Defendant was aware and failed to accommodate her. Dones v. Donahoe, 987 F.Supp.2d 659, 670 (D.Md. 2013) ("It appears that Plaintiff's supervisors may have confused the Department of Labor's workers' compensation programs with the requirements of the Rehabilitation Act."). Viewing the evidence in the light most favorable to Plaintiff, and construing that evidence in favor of expansive coverage as required by the ADAAA, Plaintiff has raised a genuine dispute regarding whether her knee and back impairment(s) substantially limited a major life activity of working. See Carter v. Pathfinder Energy Servs., Inc., 662 F.3d 1134, 1142 (10th Cir. 2011) ("[W]hether [an] impairment substantially limits a major life activity is ordinarily a question of fact for the jury.").
Defendant also intimates that Plaintiff never informed WMATA that she had a disability for which she was requesting an accommodation. Jacqueline Smith, the transit superintendent during the relevant period, testified in her deposition:
(ECF No. 64-5, at 3) (emphasis added).
There is a genuine dispute regarding WMATA's knowledge of Plaintiff's alleged disabilities and the need for an accommodation, as the record contains conflicting testimony. Plaintiff's deposition testimony somewhat suggests — albeit obliquely — that she informed WMATA that she needed the bus lowered in order to perform her job due to her disabilities. She stated that she spoke with Mr. Washington and his supervisor, Mr. Drew:
(ECF No. 64-2, at 106). Plaintiff then met with Mr. Drew and Ms. Jackie Smith, Mr. Drew's supervisor. In an earlier deposition, Plaintiff gave the following testimony:
(ECF No. 64-1, at 19-20) (emphases added).
Drawing all inferences in favor of Plaintiff, her testimony suggests that when she worked in other divisions of WMATA, she was allowed to kneel the bus as an accommodation for her knee injuries. Her deposition testimony reflects that she was denied the ability to kneel the bus only when she came under the supervision of Summon Cannon and that during the applicable time frame of July to October 2010, WMATA may have been aware of her purported disability but refused to find an appropriate accommodation.
Although Plaintiff's testimony is not definitive on whether she explicitly informed WMATA of her alleged disabilities and the need for an accommodation, viewing the evidence in the light most favorable to her, there is a genuine dispute of material fact regarding whether Defendant had notice of her alleged disabilities. Moreover, the testimony from Jacqueline Smith that even if Plaintiff had injuries which required her to kneel she would have sent her to file another worker's compensation claim reflects a misguided understanding of the requirements of the Rehabilitation Act. Under the Rehabilitation Act, if WMATA knew that Plaintiff was disabled and required an accommodation, it was the parties' responsibility to engage in the interactive process to determine an appropriate accommodation, not send Plaintiff to file another worker's compensation claim as Ms. Smith indicates. See, e.g., Dones, 987 F.Supp.2d at 670 ("The fact that Plaintiff no longer had a viable worker's compensation claim does not mean that he is no longer a disabled individual eligible for a reasonable accommodation."). Similarly, the fact that Dr. Levitt determined that Plaintiff may return to work after her worker's compensation injury does not invalidate Plaintiff's claim that she had a disability for which she needed a reasonable accommodation to perform her job.
In its memoranda, Defendant suggests that it had a legitimate non-discriminatory reason for preventing Plaintiff from kneeling the bus. Again, Defendant misconstrues the requirements to prove a failure to accommodate claim, treating it the same as a wrongful discharge claim to which the McDonnell Douglas framework applies absent direct evidence of discrimination. The employer need not have "provided the specific accommodation requested . . ., or even . . . provide[d] the best accommodation, so long as the accommodation . . . is reasonable." Reyazuddin v. Montgomery County, Md., 7 F.Supp.3d 526, 549 (D.Md. 2014). Here, even if kneeling the bus would have posed an undue hardship on Defendant — which WMATA has not argued — it still would have been obligated to provide a reasonable accommodation for Plaintiff provided she had a qualifying disability, regarding which there is a genuine dispute for the reasons explained above. In any event, although Defendant maintains that kneeling the bus in the service lane presented safety concerns, there is conflicting testimony on the record regarding this point too. Indeed, Plaintiff testified during her deposition that it was part of her job responsibilities to report whether the kneeling function of the bus worked properly and to report any deficiencies to her supervisor. She stated:
(ECF No. 64-2, at 101). Plaintiff further testified that in all other divisions of WMATA, she was permitted to kneel the bus in the service lane due to her knee injuries. Plaintiff further stated that she had been kneeling the bus for "a while, since [she] [was] at Montgomery and before then when [she] came back to Montgomery." (ECF No. 64-2, at 91).
Based on the foregoing, at this stage of the proceedings, with the evidence currently provided, there is a genuine dispute of material fact as to whether Plaintiff had an impairment that substantially limited her major life activities and whether Defendant denied her a reasonable accommodation. Thus, Defendant's motion for summary judgment will be denied as to the failure to accommodate claim.
Defendant interprets Plaintiff's amended complaint as also asserting a wrongful discharge claim on the basis of disability. In the amended complaint, Plaintiff is clear that she alleges discrimination by WMATA in failing to accommodate her disability; the amended complaint is far less clear, however, about any additional bases for discrimination. Plaintiff asserts that WMATA terminated her on July 13, 2011. The only other assertion in the amended complaint that obliquely suggests a wrongful discharge claim is the contention that "WMATA's management has engaged in a collusive and prohibited personnel practice which also constituted disability discrimination and disparate treatment of the Plaintiff."
Disability discrimination claims under the Rehabilitation Act are evaluated under the McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), "pretext" framework. See Laber v. Harvey, 438 F.3d 404, 432 (4th Cir. 2006). Under the burden-shifting scheme, the plaintiff has the initial burden of establishing a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802. To establish a prima facie case of disability discrimination under the Rehabilitation Act, a plaintiff must show that: (1) she is disabled; (2) she was otherwise qualified for the position; and (3) she suffered an adverse employment action solely on the basis of the disability. Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 498 (4th Cir. 2005). If the plaintiff is successful in establishing a prima facie case, the burden shifts to the defendant to provide a legitimate, nondiscriminatory reason for the action. Laber, 438 F.3d at 432. If the defendant provides evidence of a nondiscriminatory reason for its action, the plaintiff, who bears the ultimate burden of persuasion, must show by a preponderance of the evidence that the proffered reason was a pretext for discrimination. Id.
Defendant argues that Plaintiff fails to prove a prima facie case of discrimination because she cannot show that she has a qualifying disability. As discussed above, Plaintiff has raised a genuine dispute of material fact on this point. Although Defendant does not provide much analysis for its next argument, it asserts that Plaintiff has not shown that the discrimination occurred solely on the basis of her disability. (ECF No. 57, at 13).
The testimony to which Plaintiff refers, however, has nothing to do with her termination in June 2011; instead, it relates to Plaintiff's failure to accommodate claim and whether Mr. Cannon believed WMATA was obligated to lower the lift for its employees. (Id. at 8-9). Plaintiff argues that her "ability to prove a causal relationship requires that this Court deny WMATA's motion for summary judgment," but Plaintiff has not supplied any evidence from the record to show that WMATA terminated her based solely on her disability. The only other argument in Plaintiff's opposition regarding causation is that "Defendant's denial of Plaintiff's request [to] kneel the bus without any interactive discussion regarding accommodation, followed by Plaintiff's subsequent termination following having to discontinue kneeling the bus could easily support a reasonable inference that the cause of Plaintiff's termination was discrimination." (ECF No. 64, at 14). Plaintiff's self-serving beliefs are not sufficient to defeat a motion for summary judgment, however. As Defendant points out, Plaintiff was terminated in June 2011, months after she alleges she was denied a reasonable accommodation in July 2010.
In any event, even assuming Plaintiff has established a prima facie case, Defendant has proffered a legitimate non-discriminatory reason for her termination. The Rehabilitation Act is not violated if an employee is discharged because of her misconduct, "even if the misconduct is related to a disability." Jones v. Am. Postal Workers Union, 192 F.3d 417, 429 (4th Cir. 1999). Further, "it makes no difference if the employee was in fact guilty of misconduct." Pence v. Tenneco Auto Operating Co., Inc., 169 F.App'x 808, 811 (4th Cir. 2006). Rather, if the employer "honestly believe[s] that the employee [] engaged in misconduct, then the employer has not discriminated on the basis of disability." Id. Here, Defendant points to Rule 4.1 of WMATA's Rules and Regulations, which requires employees to report arrest within twenty-four (24) hours and to provide a copy of the summons to their immediate supervisor if they are summoned to court. (ECF No. 57-9, at 2). Defendant asserts that Plaintiff did not report to WMATA her arrest, indictment, or guilty plea, which prompted her termination. Plaintiff filed a grievance, culminating in an arbitration decision conditionally reinstating her. Plaintiff maintains that she notified her supervisor at the time, Mr. Ramey, "about the situation with the post office. He told me as long as it didn't have anything to do with WMATA, which is Metro, then I should not have to worry about it." (ECF No. 64-2, at 84). The arbitrator found that WMATA did not have any records to support its contention that Plaintiff failed to report her indictment. (ECF No. 57-6). The arbitrator noted that WMATA "made no effort, apparently, to ascertain who might have been the Grievant's supervisor in 2003, nor did [it] investigate whether the general supervisor from that time, Sherman Ramey, was still employed by the Authority in order to check on the Grievant's claim that she notified Mr. Ramey after her arrest in 2003." (Id. at 6). Consequently, the arbitrator conditionally reinstated Plaintiff and she reported back to work in March 2013. Although the arbitrator ultimately found in Plaintiff's favor in her labor dispute against WMATA, Plaintiff has not provided any evidence that WMATA's stated reason for terminating her was pretextual.
Accordingly, as to Plaintiff's discriminatory discharge claim, summary judgment in Defendant's favor is appropriate.
For the foregoing reasons, the motion for summary judgment filed by Defendant will be granted in part and denied in part.
A separate order will follow.
(Id. at 58).