Harrison-Khatana v. Cannon et al
Filing
68
MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 1/22/2015. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
DEBORAH HARRISON-KHATANA
:
v.
:
Civil Action No. DKC 11-3715
:
WASHINGTON METROPOLITAN AREA
TRANSIT AUTHORITY
:
MEMORANDUM OPINION
Presently
disability
pending
and
discrimination
ready
case
for
the
is
resolution
motion
in
for
this
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.
I.
Background
A.
Factual Background
Unless
otherwise
uncontroverted.
(“Plaintiff”
operator.
or
noted,
“Ms.
Harrison-Khatana”)
(ECF No. 57-1).
pullers
Metrobuses.
following
facts
are
WMATA hired Plaintiff Deborah Harrison-Khatana
retrieve
money
in
2002
as
a
bus
Sometime in 2007 or 2008, Plaintiff
began working as a fare box puller.
box
the
from
(ECF No. 64-1, at 4).
(ECF No. 57-2, at 2).
the
fare
boxes
of
Fare
WMATA’s
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
sustained
knee.
During
several
her
on-the-job
worker’s compensation.
tenure
with
injuries,
WMATA,
for
which
Plaintiff
she
sought
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
requested
August
that
Dr.
14,
2009.
Louis
(ECF
Levitt
No.
(“Dr.
57-3
¶
4).
Levitt”)
WMATA
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
puller.
of
returning
to
work
(ECF No. 57-4, at 3).
immediately
as
a
farebox
He stated that “[n]o further
treatment is justified as it relate[s] to the 2/10/09 accident.”
(Id.).
total
Consequently, WMATA discontinued any further temporary
disability
Plaintiff
payments
contested
to
to
the
her
on
Maryland
2
August
14,
Worker’s
2009,
which
Compensation
Commission.
Commission
(ECF No. 57-3 ¶ 7).
issued
an
order
On January 14, 2010, the
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
Plaintiff
after
injured
her
return
her
right
compensation accident.
to
work,
shoulder
on
in
(See ECF No. 57-10).
May
a
14,
new
2010,
worker’s
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.
14).
(ECF No. 57-2, at
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).
3
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.
been done, to my knowledge.”
(Id.).
It’s never
Summon Cannon testified in
his deposition that he denied Plaintiff’s August 2010 grievance.
He stated:
Because I did an investigation, along with
Mr. Drew, and Mr. Garland from the union and
we reviewed the location and we all felt
that it wasn’t necessary to kneel the bus
because of safety hazards and the buses
backing up.
4
(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:
Q: Did you make an attempt to see whether or
not
Ms.
Harrison’s
request
could
be
accommodated?
A: Yes.
Q: And what were the reasons you decided it
could not be?
I know you have said safety
and you have indicated the backing up of the
buses, correct?
A: Correct.
Q: And you also indicated something about
the second step being higher than the first
step. What exactly do you mean by that?
A: That with the curb that was at Montgomery
division, when you pull the bus into the
curb, that first step is lower than the
second step and if you had lowered the bus,
it would have lowered the first step and had
nothing to do with the bus.
. . .
A: The second step is higher than the first
step.
Q: And so what conclusions, if any, did you
draw from seeing that?
A: That if the second step is higher than
the first step, it wasn’t necessary to lower
the bus for the first step.
Q: Meaning Ms. Khatana still had to make the
second higher step?
A: Correct.
5
Q: And how many steps were there?
A: Three.
(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
[independent
February
medical
24,
2011,
evaluation]
“as
opinion
in
a
result
which
of
the
an
doctor
opined Plaintiff was then capable of returning to full duty
status.”
(ECF No. 57-5 ¶ 8).
During
Operations
a
court
at
the
proceeding
Four-Mile
in
Run
2011,
the
Manager
Division,
of
Lucious
Bus
Rucker,
learned that in 2003, Plaintiff had been indicted for filing a
false
report
compensation.
in
an
application
for
federal
(ECF No. 57-6, at 3 & ECF No. 57-7).
workers’
Plaintiff
had entered into a plea agreement with the Government, conceding
that
she
federal
made
false
workers’
statements
6
written
At
compensation.
in
the
forms
time
of
to
obtain
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
Harrison-Khatana
fifteen
falsely
compensation benefits.”
(15)
obtained
month
period,
$20,203.00
in
defendant
workers’
(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:
Employees while on or off duty are expected
to conduct themselves in a manner that will
not give cause for arrest, indictment, or in
any
manner
bring
disgrace
to
fellow
employees or to the Authority.
a) Employees arrested on or off duty
must report the matter in writing or by
telephone within a 24 hour period of the
arrest to the immediate supervisor.
b) Employees who are summoned to court
must provide a copy of the summons to their
immediate supervisor.
(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.
7
Plaintiff filed a grievance contesting her termination in
August
2011.
proceeded
(ECF
through
No.
57-6
every
at
1).
step
of
Plaintiff’s
grievance
grievance
process,
the
culminating in an arbitration hearing on April 5, 2012.
On
September 10, 2012, the arbitrator issued a written decision
conditionally reinstating Plaintiff.
states
that
Mr.
investigation.
did
not
Ballard
ordered
(Id. at 3).
report
her
The arbitration decision
Mr.
Rucker
failing
was
to
arrest
supervisor
terminated.
investigate
during
indictment,
as
reinstatement
the
and
was
The
whether
relevant
Plaintiff
conduct
an
Mr. Rucker concluded that Plaintiff
plea
recommended that she be terminated.
Plaintiff
to
argued
conditioned
bargain
in
and
Mr. Ballard agreed and
arbitrator
faulted
Plaintiff
ever
period
that
on
2003
about
she
her
WMATA
for
informed
her
her
had.
arrest
and
Plaintiff’s
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.
at
7).
By
the
time
she
returned
to
WMATA,
(ECF No. 57-2,
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,
8
and added a few additional responsibilities, such as sweeping
the bus and steaming the engine.
B.
(Id. at 11).
Procedural History
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, 2011.1
Plaintiff filed a
pro se complaint on December 23, 2011, naming WMATA and Summon
Cannon
–
a
district
manager
with
WMATA
–
as
defendants,
asserting claims under Title VII of the Civil Rights Act of
1964,
42
U.S.C.
§§
2000e,
et
seq.
(“Title
VII”),
and
the
Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101, et
seq.
(“ADA”).
(ECF No. 1).
Mr. Cannon filed a motion to
dismiss the complaint, which the court granted by memorandum
opinion
and
order
issued
on
October
31,
2012,
finding
that
Plaintiff’s Title VII and ADA claims could not be maintained
against the manager in his individual capacity.
(ECF Nos. 14 &
15).
On April 29, 2013, WMATA moved for summary judgment.
No. 29).
(ECF
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
1
In her EEOC charge, Plaintiff only checked the box for
“disability” as the basis for discrimination. (ECF No. 57-1).
9
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.
No. 39).
(ECF
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.
10, 2013.
An amended complaint was docketed on September
(ECF No. 45).
Defendant moved for summary judgment on July 7, 2014.
No.
57).
Plaintiff
opposed
the
motion
(ECF
No.
64),
(ECF
and
Defendant replied (ECF No. 67).
II.
Standard of Review
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
(1986).
The moving party bears the burden of showing that there
is no genuine dispute as to any material fact.
U.S.
242,
250
However, no
genuine dispute of material fact exists if the nonmoving party
10
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
judgment in its favor as a matter of law.
In
entitled
to
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 fairminded 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
11
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).
evidence
in
The mere existence of a “scintilla” of
support
of
the
non-moving
party's
case
is
sufficient to preclude an order granting summary judgment.
not
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)).
III. Analysis
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.2
2
In her opposition to the motion for summary judgment,
Plaintiff withdraws the claim for failure to accommodate based
on a denial of light duty.
She states: “Plaintiff was not
capable of working a regular duty position, however, defendant,
12
(ECF
No.
entirely
45
¶
clear
6).
as
Although
to
the
whether
amended
she
also
complaint
argues
that
is
not
she
was
terminated on the basis of disability discrimination, Defendant
interprets the amended complaint as also asserting that she was
terminated as a result of discrimination.
(See ECF No. 57, at
2).
Plaintiff’s
Rehabilitation
discrimination
Act.
The
claims
arise
Rehabilitation
under
Act
the
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)
discrimination
intentional
disparate
impact;
accommodations.”
and
or
(3)
disparate
failure
to
treatment;
make
(2)
reasonable
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.
A.
Failure to Accommodate
To succeed on her failure to accommodate claim, Plaintiff
must
demonstrate
disability
within
that:
the
(1)
she
meaning
was
of
an
the
individual
statute;
(2)
who
had
that
a
the
employer had notice of the disability; (3) she could perform the
in that instance, is correct that WMATA[’s] denial of her
request [for] accommodation appears justified.” (ECF No. 64, at
13).
13
essential
functions
accommodation;
accommodations.
and
of
(4)
her
the
position
employer
with
refused
a
to
reasonable
provide
such
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
accommodation.”
interactive
process
to
identify
a
reasonable
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.
that
the
relevant
(ECF No. 57, at 12).
time
period
for
The parties agree
purposes
of
disability is July 28, 2010 to October 26, 2010.3
57-11).
determining
(See ECF No.
Defendant avers:
Plaintiff’s operative time period of only
three months is not of long duration and
therefore
not
substantially
limiting.
Plaintiff’s argument that [a] three month
period of difficulty [in] stepping up into
WMATA
Metrobuses
constitutes
disability
discrimination under the Rehabilitation Act
would lead to the unreasonable conclusion
that virtually every workers’ compensation
claim of injury is a viable Rehabilitation
Act claim.
3
Plaintiff became temporarily totally disabled on October
27, 2010, when she sustained a third work-related injury.
14
(ECF No. 57, at 12).
required
as
a
Defendant also contends that Plaintiff “is
matter
of
law
to
show
more
[than]
just
her
inability to perform the manual tasks associated with her being
a farebox puller. . . . Plaintiff’s referencing of just one task
that she had difficulty performing – climbing the bus steps –
does not meet the requisite standard of proof for a substantial
limitation for the major life activity of working.”
Defendant
also
argues
that
the
record
lacks
(Id.).
evidence
that
Plaintiff was unable to work in a broad class of jobs, which
Defendant believes is necessary for Plaintiff to prove that she
has a qualifying disability.
Plaintiff counters that she is a disabled veteran with a
permanent physical impairment to her right knee.
at
7).
She
states
that
“[i]n
addition
to
(ECF No. 64,
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.
permanent
disability
and
temporary
Moreover, Plaintiff’s
disability
duration and therefore substantially limiting.”
15
is
(Id.).
of
long
An “individual with a disability,” or handicap is defined
as one who:
(i) has a physical or mental impairment
which substantially limits one or more of
such person’s major life activities;
(ii) has a record of such an impairment; or
(iii)
is
regarded
impairment.
Rehabilitation
Act,
12102(1)(A)-(C).
29
as
U.S.C.
§
having
such
705(20)(B);
an
42
U.S.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).4
validity of such cases is suspect.”
Applications
of
Maryland,
Inc.,
Civ.
“[T]he
continued
Barrett v. Bio-Medical
Action
2013 WL 1183363, at *9 (D.Md. Mar. 19, 2013).
No.
ELH-11-2835,
Both parties fail
to address the import of the ADAAA passed in 2008 – becoming
effective on January 1, 2009 – which applies here.5
See Johnson
v. Baltimore City Police Dept., Civ. Action No. ELH-12-2519,
4
Defendant cites in its motion for summary judgment Lyons
v. Shinseki, 454 F.App’x 181 (4th Cir. 2011) and Hailey v.
Donahoe, No. 6:11-cv-00022, 2012 WL 4458451 (W.D.Va. July 30,
2012).
Both of those cases, however, applied the law in place
prior to the amendments, noting that the amendments do not apply
retroactively to conduct that occurred prior to the enactment on
January 1, 2009.
5
The applicable time period when Plaintiff asserts she was
denied a reasonable accommodation begins in July 2010, postdating the amendments to the ADA.
16
2014
WL
1281602,
at
*14
(D.Md.
Mar.
27,
2014)
(“Although
plaintiff was hired in 1999 and suffered injuries in 2005 and
2008,
[]
the
discrimination
incidents
are
based
on
which
occurred
in
her
2010
allegations
and
2011.
Therefore, this case is governed by the ADAAA.”);
of
[]
Lapier v.
Prince George’s County, Md., Civ. Action No. 10-CV-2851 AW, 2013
WL 497971, at *5 (D.Md. Feb. 7, 2013) (“Courts use the same
standards
to
analyze
a
claim
for
discrimination
under
the
Rehabilitation Act as they do a claim for discrimination under
the ADAAA.”); ADAAA, Pub. L. 110-325, § 7(1), 122 Stat. 3553,
3558 (amending the Rehabilitation Act to incorporate the ADAAA’s
definition of disability).
As explained in Bennett v. Kaiser
Permanente, 931 F.Supp.2d 697, 707 (D.Md. 2013):
The obligation to apply the ADA rather than
the
ADAAA
is
consequential.
Before
[C]ongress enacted the ADAAA, courts relied
on a pair of Supreme Court cases that
created “a demanding standard for qualifying
as disabled.” [] (citing Toyota Motor Mfg.,
Ky., Inc. v. Williams, 534 U.S. 184 (2002),
superseded by statute, ADAAA, Pub.L.No. 110325, 122 Stat. 3553; Sutton v. United Air
Lines, Inc., 527 U.S. 471 (1999), superseded
by statute, ADAAA, Pub. L. No. 110-325, 122
Stat. 3553).
“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,
17
Inc., 527 U.S. 471 (1999), and their progeny.”
1281602,
at
*14.
Defendant
relies
on
Johnson, 2014 WL
Toyota
and
Sutton,
however, in framing its arguments, failing to acknowledge that
amendments
to
the
ADA
“liberaliz[ed]
establish disability under the ADA.”
the
standard
used
to
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
progeny,
within
been
the
the
“entirely
alleged
[ADAAA’s]
reasonable”
impairment
expanded
at
under
issue
definition
Toyota
and
its
fell
“comfortably
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.
activities”:
The ADAAA identifies the following “major life
“caring
for
oneself,
performing
manual
tasks,
seeing, hearing, eating, sleeping, walking, standing, lifting,
bending, speaking, breathing, learning, reading, concentration,
thinking, communicating, and working.”
18
42 U.S.C. § 12102(2)
(emphases added); Pisani v. Baltimore City Police, No. WDQ-121654, 2013 WL 4176956, at *7 (D.Md. Aug. 14, 2013).
asserts
that
during
the
relevant
period,
she
Plaintiff
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
substantially limit her walking abilities.
knee
and
back
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.
1174,
1178
(10th
Cir.
2012)
Sanchez v. Vilsack, 695 F.3d
(“[I]t
is
not
sufficient
for
a
plaintiff to identify an impairment and leave the court to infer
that
it
results
activity.”).
in
substantial
limitations
to
a
major
life
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
19
‘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:
The
term
substantially
limits
means
significantly restricted in the ability to
perform either a class of jobs or a broad
range of jobs in various classes as compared
to the average person having comparable
training,
skill
and
abilities.
The
inability to perform a single, particular
job
does
not
constitute
a
substantial
limitation in the major life activity of
working.
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:
(i) The term “substantially limits” shall be
construed broadly in favor of expansive
coverage, to the maximum extent permitted by
the terms of the ADA.
“Substantially
limits” is not meant to be a demanding
standard.
20
(ii) An impairment is a disability within
the
meaning
of
this
section
if
it
substantially limits the ability of an
individual to perform a major life activity
as compared to most people in the general
population. An impairment need not prevent,
or significantly or severely restrict, the
individual from performing a major life
activity
in
order
to
be
considered
substantially limiting.
(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”;6 thus, Plaintiff’s failure to
prove as much is not detrimental to her claim.
See, e.g.,
Boitnott v. Corning Inc., 669 F.3d 172, 175 n.4 (4th Cir. 2012);
Palmerini v. Fidelity Brokerage Servs. LLC, Civ. No. 12-cv-505JD, 2014 WL 3401826, at *5 (D.N.H. July 9, 2014) (“Fidelity
contends in support of summary judgment that Palmerini cannot
show that he is substantially limited in the major life activity
6
Moreover, Section 1630(2)(j)(4)(i) states:
in determining whether an individual is
substantially
limited
in
a
major
life
activity, it may be useful in appropriate
cases to consider, as compared to most
people
in
the
general
population,
the
condition
under
which
the
individual
performs the major life activity; the manner
in which the individual performs the major
life activity; and/or the duration of time
it takes the individual to perform the major
life activity, or for which the individual
can perform the major life activity.
21
he claims, working.
Citing the version of § 1630.2(j) prior to
amendment following the ADAAA, Fidelity argues that Palmerini
cannot show that his depression or PTSD significantly restricted
his ability to do either a class of jobs or a broad range of
jobs.
Because Fidelity relies on outdated authority, however,
that argument is unpersuasive.”).
Congress
attention
entities
instructed
in
cases
covered
obligations,
and
brought
under
.
courts
.
under
the
.
“that
have
the
primary
ADA
the
ADA
that
the
should
be
complied
question
object
whether
with
of
of
their
whether
an
individual’s impairment is a disability under the ADA should not
demand excessive analysis.”
No.
110-325,
§
2(b)(5),
ADA Amendments Act of 2008, Pub. L.
122
Stat.
3553.
An
individualized
assessment is still required to determine “whether an impairment
substantially limits a major life activity,” however.
§ 1630.2(j)(1)(iv).
29 C.F.R.
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
deposition with respect to the impairment in her right knee:
Q: Tell me what happened that caused you to
be disabled in your right knee.
A: I was in the military, basic training, I
was jumping a hurdle and I hurt my knee.
22
her
Q: What happened to your knee?
A: Caused swelling, messed up some tissue,
it was popping and it put a strain on the
knee.
Q: [] [D]id you stay in the military after
that?
A: Yes, I did. I did six years and then []
once I went through the steps, they made me
a disabled vet.
Q: What does that encompass, them labeling
you a disabled vet, what do they have to do
to come to that conclusion?
A: You get a rating, they do an evaluation
and then they do a rating of what your
condition is so you can receive payments
every month.
Q:
Is
that
disability?
considered
a
permanent
A: Yes, it is.
(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
23
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:
A. Well, first of all, based on that
question, I had to step up on the bus and
the platform, with the step of the bus –
because you know you have a different bus.
The 22 series buses[] are higher, the steps
[are] higher from the platform and at that
time we had money in the fare box that made
the fare box heavy for me to lift and take
back to the vault and stepping up, it was
too high, because of putting pressure on my
leg and my knee and to step back down.
It
was putting a strain on my back and my knee,
which gave me a bulging disk.
. . .
Q: [] I just want you to tell me everything
about how you say [the impairments] affected
your activities?
A: It was hard to step up the highest bus,
the highest steps and the step down, and to
lift up that fare box because it had more
money in it, it was heavy, and to put it in
the vault. It was causing me more pain and
damage to my knee and my back.
(Id. at 30-31) (emphases added).
Defendant points to aspects of
Plaintiff’s
she
testimony
in
which
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
24
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
starting February 2009, and ending in October 2010.”
67, at 2).
Defendant’s argument is unpersuasive.
period
(ECF No.
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.
v.
Marriott
Intern.,
Inc.,
No.
CV-12-00770-PHX-BSB,
See Moore
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:
25
Plaintiff has no record of any impairment
and WMATA never regarded her as [having] any
such impairment.
WMATA often sends its
employees who have worker’s compensation
injuries
for
independent
medical
examinations, and Plaintiff was seen in both
her 2009 and 2010 claims that pre-dated this
three-month period of claimed impairment.
Dr. Louis Levitt saw Plaintiff for both
claim[s] and opined whether or not she was
capable of returning to work at her job
duties. . . . Dr. Levitt in his report dated
September 25, 2012, stated, “[o]n 5/15/10,
she overexerted herself . . . and claimed an
injury to her lower back and right shoulder
. . . I saw her on 6/29/10 for an
independent assessment.
At that time she
had little clinical complaint.” . . . Dr.
Levitt stated that with respect to her work
capacity, there was nothing related to her
May 14, 2010 injury that wo[uld] interfere
with her capabilities to “work at any job.
She can handle work as fare box collector.”
(ECF No. 67, at 6; see also ECF No. 67-1).
Whether
immaterial,
WMATA
regarded
however;
her
Plaintiff
as
having
provides
an
impairment
deposition
is
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
compensation
the
programs
Rehabilitation Act.”).
Department
with
the
of
Labor’s
requirements
workers’
of
the
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
26
impairment(s)
working.
1134,
substantially
limited
a
major
life
activity
of
See Carter v. Pathfinder Energy Servs., Inc., 662 F.3d
1142
substantially
(10th
limits
Cir.
a
2011)
major
(“[W]hether
life
activity
[an]
is
impairment
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:
Q: Did Ms. Harrison-Khatana detail the
health
reasons
that
she
had
[]
that
precipitated her request to have the bus
lowered?
A: No, she did not.
Q: Okay.
And you had no idea why,
healthwise, [] why it would affect her
health to have the bus lowered; is that
correct?
. . .
A: I had no knowledge of what injury or what
[] her previous workers’ comp condition was,
what she was experiencing at that time. She
just said that she had a previous injury
that prevented, that she wanted to kneel the
bus.
Q: So during your meeting with her, did you
inquire what her health condition was that
precipitated the request?
A: No, I didn’t.
Q: And why not?
27
A: Why not?
Because that request was not
going to be granted.
[]
[M]y position is
if her workers’ comp was preventing her from
performing her duty, then she needed to go
back to workers’ comp and discuss her injury
with
them
and
they
would
make
a
determination whether she could continue to
work or she goes back out with workers’
comp. And that was my position.
(ECF No. 64-5, at 3) (emphasis added).
There is a genuine dispute regarding WMATA’s knowledge of
Plaintiff’s
alleged
accommodation,
Plaintiff’s
as
disabilities
the
deposition
record
and
contains
testimony
the
need
conflicting
somewhat
for
an
testimony.
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
supervisor, Mr. Drew:
Q: Now, when you spoke with Mr. Washington,
did you inform him in any way how lowering
the bus affected your health?
A: Yes, I did.
Q: And what did you tell him?
A: I told him it was putting a strain on my
back and my knees and I couldn’t do my job
and that is the reason why I needed to talk
to Mr. Drew.
Q: And what did Mr. Washington tell you?
A: He told me that I couldn’t kneel that bus
and if I kneeled it again, which he said
again, that I would get [written] up or
suspen[ded] or sent home.
28
and
his
(ECF No. 64-2, at 106).
Ms.
Jackie
Smith,
Mr.
Plaintiff then met with Mr. Drew and
Drew’s
supervisor.
In
an
earlier
deposition, Plaintiff gave the following testimony:7
Q: When you claim, in your charge of
discrimination, that you were not given
reasonable accommodation, did you ever make
a
formal
request
for
a
reasonable
accommodation, for any accommodation based
on your disability?
A: I don’t mean to laugh, but you must be
speaking about them kneeling the bus?
Q: If that’s what you’re talking about.
A: Yes, I did. As a matter of fact, I even
[] went and talked to Ms. Smith, she’s the
superintendent for Montgomery. []
Q: Jackie Smith?
A: Jackie Smith, Mr. Drew, Mr. Washington.
Because
first
it
started
from
Mr.
Washington, he told me no.
Then I went to
Mr. Drew.
Q: No. I’m asking about a request. I don’t
know what being told no means. But who did
you request and what did you say?
A: These are individuals that told me no.
The supervisors told me no, that I could not
kneel the bus in the fare lane anymore.
. . .
A: I was told [previously that] I can kneel
the bus in the fare lane because of my
condition.
And that’s what I [have] been
doing through all of that –7
Plaintiff was deposed when she was pro se, and then again
when she became represented and was given leave to amend her
complaint.
29
Q: Who told you that?
A: The – let’s see, what doctor was that? I
mean, [you all] have me see so many doctors
I don’t know their names. Told me to kneel
the bus, and I’ve been kneeling the bus in
every division that I was working. . . . I
was kneeling the bus all the time.
(ECF No. 64-1, at 19-20) (emphases added).8
Moreover, Mr. Cannon
stated that he was aware that “[Plaintiff] had some issues that
she couldn’t step up on the step.”
(ECF No. 57-14, at 4).
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.
the
Her deposition testimony reflects that she was denied
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.9
8
Plaintiff stated that she did not recall completing a form
to request a reasonable accommodation. She stated: “[The form]
must be something new. But I had my disability prior before in
my record. Now, what they did with my records, I don’t know.”
(ECF No. 64-1, at 20).
9
During her deposition, Plaintiff testified that when she
worked in another division of WMATA, a ramp was either made or
bought for her “[b]ecause the bus was high.” (ECF No. 64-2, at
57). Plaintiff gave the following testimony:
30
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
disabilities.
whether
Moreover,
Defendant
the
had
notice
testimony
from
of
her
alleged
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.”).
Q: So you were provided a
instead of getting on bus.
yellow plastic ramp, correct?
Similarly, the fact
ramp to use
This was a
A: The ramp was for me to get on the bus –
because they didn’t have a ramp – to kneel
the bus down, they didn’t have [anything] to
kneel it down because it still would have
been high – they didn’t have a platform.
(Id. at 58).
31
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.10
In
its
legitimate
from
memoranda,
Defendant
non-discriminatory
kneeling
the
bus.
suggests
reason
Again,
for
that
it
preventing
Defendant
had
a
Plaintiff
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
discrimination.
applies
The
absent
employer
need
direct
not
have
evidence
of
“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
reasonable
accommodation
qualifying
disability,
have
for
been
obligated
Plaintiff
regarding
which
dispute for the reasons explained above.
10
to
provided
there
is
provide
she
a
had
a
a
genuine
In any event, although
Defendant also argues in its motion for summary judgment
that “Plaintiff must prove that [] WMATA’s failure to [] allow
her to knee[l] the bus [] was solely as a result of her alleged
disability to her knees and back.”
(ECF No. 57, at 13).
Defendant is mistaken.
Causation is not an element of a prima
facie failure to accommodate claim.
32
Defendant maintains that kneeling the bus in the service lane
presented safety concerns, there is conflicting testimony on the
record regarding this point too.
during
her
deposition
that
Indeed, Plaintiff testified
it
was
part
of
her
job
responsibilities to report whether the kneeling function of the
bus
worked
supervisor.
properly
and
to
report
any
deficiencies
to
her
She stated:
A: Once I get the bus, and kneeling bus is
not working or the lift is not working, then
I go to the supervisor.
Q: Who determines whether it is working or
not?
A: Maintenance will, they [have] to make
sure it works before they put it on the
street, they got to have the kneeling and
the lift working before they take it out on
the street.
Q: Where
lift?
do
they
do
that
testing
of
the
where
[told]
Mr.
you
A: [] [I]n the service lane.
. . .
Q: Is this the same place
Washington, in your complaint,
not to lower the bus?
A: Correct.
(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
33
[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
Defendant
limited
denied
her
her
major
a
life
reasonable
activities
and
whether
accommodation.
Thus,
Defendant’s motion for summary judgment will be denied as to the
failure to accommodate claim.
B.
Termination
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.
asserts that WMATA terminated her on July 13, 2011.
Plaintiff
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
34
and
disparate treatment
of the Plaintiff.”11
(ECF No. 45 ¶ 16)
(emphasis added).
Disability discrimination claims under the Rehabilitation
Act are evaluated under the McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973), “pretext” framework.
Harvey, 438 F.3d 404, 432 (4th Cir. 2006).
shifting
scheme,
the
plaintiff
has
the
See Laber v.
Under the burdeninitial
burden
establishing a prima facie case of discrimination.
of
McDonnell
Douglas, 411 U.S. at 802.
To establish a prima facie case of
disability
under
plaintiff
discrimination
must
show
that:
(1)
the
she
Rehabilitation
is
disabled;
(2)
Act,
she
a
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).
establishing
a
prima
facie
If the plaintiff is successful in
case,
the
burden
shifts
to
the
defendant to provide a legitimate, nondiscriminatory reason for
the action.
Laber, 438 F.3d at 432.
evidence
a
of
nondiscriminatory
11
If the defendant provides
reason
for
its
action,
the
Plaintiff did not assert termination in her October 21,
2010 EEOC charge (ECF No. 57-1), thus in its initial motion for
summary judgment (filed before Plaintiff amended her complaint),
Defendant argued that she failed to exhaust administratively.
Plaintiff raised claims under the ADA and Title VII in her
initial complaint, however. Unlike the ADA, the Rehabilitation
Act has no administrative exhaustion requirement.
See Raiford
v. Maryland Dept. of Juvenile Services, Civ. Action No. DKC 123795, 2014 WL 4269076, at *7 n.7 (D.Md. Aug. 28, 2014).
35
plaintiff, who bears the ultimate burden of persuasion, must
show
by
a
preponderance
of
the
evidence
reason was a pretext for discrimination.
Defendant
argues
that
Plaintiff
that
the
to
proffered
prove
Id.
fails
a
prima
facie case of discrimination because she cannot show that she
has a qualifying disability.
raised
a
genuine
dispute
As discussed above, Plaintiff has
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).12
opposition:
“Plaintiff
In response, Plaintiff asserts in her
can
show
that
[]
WMATA’s
failure
to
follow their own procedures and allow her to kneel the bus, []
as well as her later termination, were solely as a result of her
alleged disability to her knees and back.”
(ECF No. 64, at 9).
Plaintiff points to testimony from Mr. Cannon, which she asserts
12
Curiously, in its reply brief, WMATA discusses causation
in the context of a retaliation claim. (See ECF No. 67, at 8).
Plaintiff has not asserted in the amended complaint that she was
terminated in retaliation for her filing the EEOC complaint,
however.
Nowhere does retaliation appear as a cause of action
in her amended complaint, nor does she make any arguments about
retaliation in the opposition to the motion for summary
judgment. In her deposition, Plaintiff stated that she believed
WMATA terminated her in retaliation for filing a grievance
against Defendant in August 2010 for not allowing her to kneel
the bus.
(ECF No. 64-2, at 84).
Because Plaintiff did not
assert a retaliation claim in her amended complaint, however,
the retaliation claim will not be considered.
In any event,
aside
from
her
conclusory
averments,
Plaintiff
has
not
established that WMATA retaliated against her.
36
“as a matter of law, precludes any finding that there is [] not
a causal link between her impairments and WMATA’s actions, based
solely on her impairments.”
The
testimony
to
(Id.).
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
terminated her based solely on her disability.
that
WMATA
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.”
serving
beliefs
are
(ECF No. 64, at 14).
not
summary judgment, however.
sufficient
to
Plaintiff’s self-
defeat
a
motion
for
As Defendant points out, Plaintiff
was terminated in June 2011, months after she alleges she was
denied a reasonable accommodation in July 2010.
37
In any event, even assuming Plaintiff has established a
prima
facie
case,
Defendant
has
proffered
discriminatory reason for her termination.
a
legitimate
non-
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.”
WMATA’s
Rules
Id.
and
Here, Defendant points to Rule 4.1 of
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.
a
grievance,
culminating
conditionally
reinstating
notified
supervisor
her
in
her.
at
arbitration
Plaintiff
the
situation with the post office.
an
time,
Plaintiff filed
Mr.
decision
maintains
Ramey,
that
she
“about
the
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).
38
The
arbitrator found that WMATA did not have any records to support
its contention that Plaintiff failed to report her indictment.
(ECF
No.
effort,
57-6).
The
apparently,
arbitrator
to
noted
that
WMATA
“made
who
might
have
been
ascertain
no
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.
IV.
Conclusion
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.
/s/
DEBORAH K. CHASANOW
United States District Judge
39
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