Dagher v. Washington Metropolitan Area Transit Authority
MEMORANDUM OPINION. Signed by Magistrate Judge Charles B. Day on 7/28/2017. (aos, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
AREA TRANSIT AUTHORITY,
Case No. CBD-14-3710
Washington Metropolitan Area Transit Authority (“Defendant”) submits before this
Court its Renewed Motion for Judgment as a Matter of Law (“the Motion”). ECF No. 58. The
Court has reviewed the parties’ submissions and the applicable law. No hearing is deemed
necessary. See Local Rule 105.6 (D. Md.). For the reasons presented below, the Court
GRANTS the Renewed Motion for Judgment as a Matter of Law.
FACTUAL AND PROCEDURAL BACKGROUND
Jouhad Dagher (“Plaintiff”) initiated a civil action against Defendant on November 26,
2015, alleging that Defendant violated the Rehabilitation Act of 1973, 29 U.S.C. §§ 794 (“the
Rehabilitation Act”), by failing to accommodate Plaintiff’s disability in the workplace and
discriminating against Plaintiff based on Plaintiff’s disability. 1 ECF No. 1. Plaintiff alleged that
his pre-existing malignant hypertension, left ventricular hypertrophy, and chest pains were
exacerbated by the “poor ventilation… poor air quality and extreme temperatures” in his office
throughout the time he was employed by Defendant. Pl.’s Compl. 3. These conditions allegedly
A third count alleged a violation of the Whistleblower Protection Act of 1989, 5 U.S.C. §§
1201 et seq., based on Defendant’s termination of Plaintiff’s employment. The Court dismissed
said claim on April 23, 2015.
resulted in labored breathing and spikes in blood pressure which led to three separate hospital
visits during Plaintiff’s employment. Id. at 3–6. Plaintiff repeatedly requested to telework,
acting on a recommendation from his physician and explaining that his symptoms did not flare
up at home. Id. Defendant denied Plaintiff’s requests to telework. Id. At trial, Defendant
admitted to terminating Plaintiff due to his frequent absences from work.
On May 22, 2017, after a five-day trial, the jury returned a special verdict finding that:
(1) Defendant had failed to make reasonable accommodations for Plaintiff based on a disability
in violation of the Rehabilitation Act, and (2) Defendant had not unlawfully discriminated
against Plaintiff based on disability in the form of unlawful termination. Plaintiff was awarded
$53,000 for Defendant’s alleged failure to accommodate Plaintiff’s disability. ECF No. 55.
Defendant now seeks judgment as a matter of law under Fed. R. Civ. P. 50(b), renewing its
motion made at the conclusion of Plaintiff’s case during the trial, that Plaintiff is not disabled
under the definition of the Rehabilitation Act. The Court GRANTS the Motion for the reasons
Standard of Review
Under the Federal Rules of Civil Procedure 50(a), a motion for judgment as a matter of
law may be made at any time before the case is submitted to the jury. If the Court does not grant
a motion made under Rule 50(a), “the Court is considered to have submitted the action to the
jury subject to the Court’s later deciding the legal questions raised by the motion,” and the
moving party may file a renewed motion for judgment as a matter of law no later than 28 days
after the entry of judgment. Fed. R. Civ. P. 50(b).
The standard by which judgment as a matter of law is deemed proper mirrors the standard
required for a legitimate grant of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250 (1986). This standard is met when the moving party shows that there is no genuine
issue as to any material fact. Fed. R. Civ. P. 56(a). No genuine issue as to any material fact is
found when “a reasonable jury would not have a legally sufficient evidentiary basis to find for
the [opposing] party on that issue.” Fed. R. Civ. P. 50(a)(1). The Supreme Court has noted that
the primary difference between summary judgment and motions for judgment as a matter of law
is merely procedural. Liberty Lobby, 477 U.S. at 251 (quoting Bill Johnson’s Rests., Inc. v.
N.L.R.B., 461 U.S. 731, 745 n.11 (1983)). Ultimately, in order to obtain judgment as a matter of
law, the moving party must prove that a reasonable jury could not have found for the nonmoving party based on the great weight of the evidence. See id. at 251.
When considering a renewed motion for judgment as a matter of law, all reasonable
inferences must be drawn in favor of the non-moving party. Tolan v. Cotton, 134 S. Ct. 1861,
1863 (2014). If the adverse party is able to show that there is indeed a genuine issue of material
fact, a motion for judgment as a matter of law will not be granted. See Liberty Lobby, 477 U.S.
at 250. Otherwise, the moving party is entitled to judgment as a matter of law if “there can be
but one reasonable conclusion as to the verdict.” Id. A plaintiff’s failure to prove all the
elements of a claim is grounds for judgment as a matter of law because a reasonable jury would
not have a legal basis for deciding the case in the plaintiff’s favor. Id. at 255–56.
In the instant case, Defendant argues that Plaintiff failed to establish that he is disabled
within the meaning of the Rehabilitation Act based on the legal standard required in this circuit.
The Court grants the Motion for the reasons discussed below.
Plaintiff is not an individual with a disability under the Rehabilitation Act.
In order to establish a prima facie failure to accommodate case under the Rehabilitation
Act, 2 a plaintiff must show that: (i) he or she was an individual who had a disability
characterized and covered by the Rehabilitation Act, (ii) the employer had notice of his or her
disability, (iii) with reasonable accommodation, he or she could perform the essential functions
of the position, and (iv) the employer refused to make those reasonable accommodations. See
Rhoads v. F.D.I.C., 257 F.3d 373, 387 n.11 (4th Cir. 2001). For an individual to qualify as
disabled, an individual must: (i) have a physical or mental impairment which substantially limits
a major life activity, (ii) have a record of such an impairment, or (iii) be regarded as having such
an impairment. 42 U.S.C. § 12102. The Equal Employment Opportunity Commission,
implementing the equal employment provisions of the Rehabilitation Act, requires that a
disabled individual must be affected by his or her impairment to the extent that the impairment
“substantially limits the ability… to perform a major life activity as compared to most people in
the general population.” 29 C.F.R. § 1630.2(j)(1)(ii). Major life activities include activities such
as walking, standing, breathing, and working. 42 U.S.C. § 12102.
To determine if an individual has a disability when the impairment is affected by that
individual’s work environment, courts apply the foreclosure test. Rhoads v. F.D.I.C., 257 F.3d
373, 389 (4th Cir. 2001) (citing Gupton v. Va., 14 F.3d 203, 205 (1994)). Before applying the
The Rehabilitation Act specifically protects against exclusion from participation in, denial of
the benefits of, or discrimination based on a disability under any “program or activity” which
either: (i) receives federal financial assistance, or (ii) is conducted by an Executive agency or the
United States Postal Service. 29 U.S.C. § 794(a). The Americans with Disabilities Act of 1990
(“ADA”) expands on the Rehabilitation Act and creates a federal mandate to address and
eliminate discrimination based on disabilities in State and local government. 42 U.S.C. § 1213112132. The Rehabilitation Act applies the same standard as the ADA when determining if
discrimination has occurred, and thus the same standard for establishing a prima facie case of
failure to accommodate. See Hooven-Lewis v. Caldera, 249 F.3d 259, 268 (4th Cir. 2001).
foreclosure test, courts must determine whether the foreclosure test is applicable under Rhodes.
Id. If it is applicable, the court then applies the foreclosure test as outlined in Gupton v. Virginia.
14 F.3d at 205.
i. The foreclosure test applies to Plaintiff’s case.
The Fourth Circuit has adopted the “foreclosure test” to assess whether an impairment is
severe enough to substantially limit an individual’s ability to work. Rhoads, 257 F.3d at 389
(citing Gupton, 14 F.3d at 205). Under the Rehabilitation Act, an individual’s ability to work is
considered substantially limited when “an employer regards an employee as handicapped in his
or her ability to work by finding the employee’s impairment to foreclose generally the type of
employment involved.” Forrisi v. Bowen, 794 F.2d 931, 935 (1986). In determining if an
individual’s impairment forecloses generally other employment opportunities, courts will often
examine “‘the number and type of jobs from which the impaired individual is disqualified, the
geographical area to which the individual has reasonable access, and the individual’s job
expectations and training.’” Id. at 933 (quoting Jasany v. U.S. Postal Serv., 755 F.2d 1244, 1249
(6th Cir. 1985)). Thus, substantial limitation is not measured merely by an individual’s inability
to work in a particular position or complete a particular task, but also by the ability of the
individual to find similar positions in his or her field of work. See id. at 935 (finding no
discrimination based on disability because plaintiff’s acrophobia, or fear of heights, only
prevented him from continuing to work in a single job rather than preventing his ability to find
work in the utility systems repair field completely); see also Gupton, 14 F.3d at 205 (holding that
plaintiff was not protected under the Rehabilitation Act because her allergy to tobacco smoke
only prevented her from working in one particular position in one office).
A plaintiff’s claim must be assessed under the foreclosure test “where an ADA plaintiff
asserts that she is disabled based on a substantial limitation of a major life activity other than
working, but her condition is aggravated solely by her workplace environment.” Rhodes, 257
F.3d at 389. Thus, to apply the foreclosure test to Plaintiff’s case, the Court must determine
whether Plaintiff (1) asserted disability on a substantial limitation of a major life activity other
than working, and (2) has only shown that his conditions was aggravated solely by his workplace
environment. See id.
In Rhoads, the plaintiff asserted that her substantial limitation on breathing was caused by
exposure to tobacco smoke in her workplace. Id. at 389–90. The plaintiff could not prove that
her asthma was aggravated by anything other than her workplace; in fact, her ability to breathe
was not substantially limited during activities such as ballet dancing or bicycling. Id. at 391.
The Rhodes court applied the foreclosure test, explaining that the proper inquiry as to whether
the plaintiff was an individual with a disability under the ADA was whether the plaintiff was
substantially limited in her ability to work. Id. at 389–91.
In the instant case, Plaintiff has alleged that his substantially limited major life activity is
breathing, rather than working, due to increases in blood pressure caused by poor air quality and
high temperatures in his workplace. Transcript of Record at 36:17-25 – 37:1-16. 3 Second,
Plaintiff did not assert or provide evidence showing that his symptoms were aggravated
anywhere other than his workplace. Plaintiff instead claims that his conditions were exacerbated
by the poor air quality and “extreme” temperatures in his office caused specifically by the poor
ventilation, temperature control, and non-functioning air conditioning unit in his office building.
Id.; Transcript of Record at 14:19-25 – 15:1-3, 77:9-13; 78:7-12. Plaintiff maintained that his
The transcripts of the record referred to here were prepared for the purpose of this opinion only
and are not the final certified version.
conditions were previously managed and stable prior to his employment with Defendant. Pl.’s
Compl. 3; Transcript of Record at 12:8-10. The foreclosure test therefore applies because
Plaintiff alleges that his impairment substantially limits a major life activity other than working,
i.e. breathing, and that his hypertension and other symptoms are “aggravated solely by [his]
workplace environment.” Rhoads, 257 F.3d at 390.
ii. Plaintiff is not “disabled” under the foreclosure test.
In order to make the required showing that a plaintiff is disabled under the “foreclosure
test,” the plaintiff must show that: (1) his or her impairment made the plaintiff “incapable of
satisfying the singular demands of a particular job,” and (2) his/her impairment “foreclosed
generally the opportunity to obtain the type of employment involved.” Rhoads, 257 F.3d at 388
(citing Gupton, 14 F.3d at 205).
As to the first requirement, there is no evidence provided by either party showing that
Plaintiff’s preexisting conditions made him inherently incapable of satisfying the requirements of
the safety engineering position he held during his employment with Defendant. Thus, Plaintiff
fails to meet this requirement of the foreclosure test. Even if he had satisfied the first factor,
Plaintiff would nevertheless fail the foreclosure test because he does not meet the requirements
of the second factor. Plaintiff’s hypertension and difficulty breathing does not preclude him
from working in a similar capacity at a different company. Transcript of Record at 2:4-11; see
Gupton, 14 F.3d at 205 (where plaintiff failed to show that her allergy to tobacco smoke
prevented her from finding work in the highway utility specialist field). In fact, Plaintiff was
able to find a similar position at a different company, following his termination by Defendant,
where he has not requested accommodation for his impairment because “there is no problem
with the ventilation system in the office [he] is working at now.” Transcript of Record at
111:1-11. Additionally, there are no allegations nor evidence provided by Plaintiff showing that
it was not solely his workspace’s poor ventilation or poor temperature control that aggravated his
conditions. Because Plaintiff fails this requirement of the foreclosure test, Plaintiff’s impairment
does not “foreclose generally [his] opportunity to obtain the type of employment involved.”
Forrisi, 794 F.2d at 935. Instead, his impairment merely made difficult his ability work in one
particular office in one particular building due to that one office’s poor ventilation and lack of
temperature. No evidence was presented showing that Plaintiff suffered hypertension and
difficulty breathing outside of this office, nor that this exacerbation of symptoms would be
repeated in a different office building. Ultimately Plaintiff failed to prove his hypertension and
difficulty breathing met the threshold of an impairment that substantially limited working. Thus,
Plaintiff’s hypertension cannot be considered to be a disability within the meaning of the
Rehabilitation Act and he has no recourse under a failure to accommodate claim because his
impairment does not satisfy the foreclosure test established by Gupton. 14 F.3d at 205.
For the foregoing reasons, the Court GRANTS Defendant’s Renewed Motion for
Judgment as a Matter of Law based on Plaintiff’s failure to show that he is an individual with a
disability as required by the Rehabilitation Act.
July 28, 2017
Charles B. Day
United States Magistrate Judge
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