Aka v. Washington Hosp. Center
| Decision Date | 09 October 1998 |
| Docket Number | No. 96-7089,96-7089 |
| Parties | 159 L.R.R.M. (BNA) 2467, 77 Fair Empl.Prac.Cas. (BNA) 1840, 332 U.S.App.D.C. 256, 8 A.D. Cases 1093, 13 NDLR P 224 Etim U. AKA, Appellant, v. WASHINGTON HOSPITAL CENTER, Appellee. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeal from the United States District Court for the District of Columbia (No. 94cv01281).
Gregg D. Adler argued the cause for appellant, with whom James L. Kestell was on the briefs.
Stewart S. Manela argued the cause for appellee, with whom Henry Morris, Jr., and Anne M. Hamilton were on the briefs. Samuel K. Charnoff entered an appearance.
Barbara L. Sloan, Attorney, Equal Employment Opportunity Commission, argued the cause for amicus curiae, with whom Lorraine C. Davis, Assistant General Counsel, was on the briefs. Philip B. Sklover, Associate General Counsel, entered an appearance.
Before: EDWARDS, Chief Judge, WALD, SILBERMAN, WILLIAMS, GINSBURG, SENTELLE, HENDERSON, RANDOLPH, ROGERS, TATEL and GARLAND, Circuit Judges.
In 1991, Etim U. Aka ("Aka") underwent heart bypass surgery, and thereafter was unable to perform his prior job as an orderly at Washington Hospital Center ("WHC"). After several of his applications for vacant positions at WHC were turned down, he sued WHC in the United States District Court for the District of Columbia, claiming that WHC in its hiring decisions had discriminated against him on the basis of his age and disability, and that WHC had also violated the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq., ("the ADA") by failing to reasonably accommodate his disability by reassigning him to a vacant position. The district court granted summary judgment to WHC, and Aka appealed; a divided panel of this court vacated the summary judgment as to one of the hiring decisions and as to Aka's reasonable-accommodation claim. At the behest of WHC, we granted rehearing in banc as to these two claims. We again vacate the original summary judgment on Aka's two claims, though for reasons that differ from the panel's in some respects.
Aka, a 56-year-old man born and raised in Nigeria, began working for WHC as an Operating Room Orderly in 1972, two years after he emigrated from Nigeria. His job, which involved transporting patients and medical supplies to and from WHC's operating room, required substantial amounts of heavy lifting and pushing. While working at WHC, Aka earned a college degree from the University of Baltimore, and then a master's degree in business and public administration ("MBPA") in health service management from Southeastern University.
In 1991, after working at WHC for over nineteen years, Aka was hospitalized with heart and circulatory problems. He underwent bypass surgery in November 1991, and spent several months thereafter in rehabilitation. While he was in the hospital, a representative of WHC's personnel department, at the request of a hospital social worker, visited Aka to discuss the possibility of his returning to work. Aka had obtained a medical leave of absence from WHC before his operation, and WHC now arranged for an extension of that leave. Aka was in rehabilitation until April 1992. His doctor then told him he could return to work, with a warning that his job could not involve more than a "light or moderate level of exertion."
Aka's former orderly job did not meet that qualification; thus, Aka asked the hospital to transfer him to a job that was compatible with his medical restrictions. 1 WHC declined to do so, and instead told him that it was his responsibility to review WHC's job postings and to apply for any vacant jobs that interested him. WHC did, however, put Aka on an eighteen-month "job search leave." The applicable collective bargaining agreement ("CBA") provides that qualified WHC employees "will be given preferential treatment over nonHospital employees in filling bargaining unit vacancies," and also incorporates an additional preference for employees with greater seniority. WHC's decision to place Aka on job search leave meant that Aka could retain these preferences during the leave period.
Aka first applied for a position as a Financial Manager, but was not given an interview. An employee of WHC's personnel department told him to apply for less elevated positions, and specifically suggested the positions of File Clerk and Unit Clerk. Aka followed this advice, and applied in May 1993 for a position as Central Pharmacy Technician, a job that involved a range of clerical tasks associated with filling prescriptions, such as patient census checks, charge processing, and stock replacement. Dr. Ann Breakenridge ("Breakenridge"), WHC's Assistant Director of Pharmacy Clinical Services, interviewed Aka for this job, but hired another hospital employee, Jaime Valenzuela ("Valenzuela"), instead.
In July 1993, four vacancies opened up for File Clerk positions. Aka again applied and was interviewed, but did not get any of the four jobs. Among the four applicants who were hired were two non-WHC employees. Aka, believing that this violated the CBA's requirement that hospital employees be accorded preference in filling empty positions, complained to the union, and the union filed a grievance on behalf of Aka and another hospital employee. While this grievance was in arbitration, WHC admitted its mistake, removed the two non-employees from the File Clerk jobs, and hired two hospital employees instead; it did not, however, hire Aka. Aka then protested that he should have been among those hired, given his greater seniority. The arbitrator ultimately ruled (in November 1994) that WHC's decision not to hire Aka did not violate the CBA. The arbitrator found that Aka met the minimal qualifications for the job, had "excellent" evaluations and "good marks" for his ability to work with peers, and was a "highly intelligent and motivated man" who "could be expected to grasp the technical aspects of the job quite readily." Nevertheless, he said, the CBA allows WHC to hire less senior applicants if they are more qualified, and the applicants WHC hired for the File Clerk jobs had substantial experience with office work, which Aka did not.
In the meantime, Aka continued to apply for other positions at the hospital, but did not receive interviews for any of them. (He eventually volunteered to do administrative work in various parts of the hospital, but still did not succeed in obtaining a job.) In June 1994, Aka filed suit in the United States District Court for the District of Columbia. He claimed that WHC's failure to place him in the Central Pharmacy Technician or File Clerk jobs constituted discrimination on the basis of his disability and age, in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-34 (1994), and the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. (1994). 2
WHC initially moved to dismiss the complaint, arguing that Aka was required to exhaust the CBA's grievance procedures; this motion was denied. Then, after discovery, WHC moved for summary judgment as to Aka's disparate treatment claims, which invoke WHC's failure to hire him for any of the jobs he applied for; the district court granted this motion. Aka cross-moved for summary judgment as to WHC's failure to reasonably accommodate his disability, asserting that, under the ADA, WHC was obliged to reassign him to a vacant position for which he was qualified and which he could perform despite his disability. As to his reasonable-accommodation claim, the district court concluded that the CBA barred WHC from reassigning disabled employees outside of the usual job-application process provided for in the CBA, and that any reassignment obligation under the ADA must give way if it conflicts with other employees' rights under the CBA. The district court thus granted summary judgment to WHC on this issue as well.
Aka appealed the denial of both the ADEA and the ADA claims. A panel of this court concluded that the district court had correctly granted summary judgment to WHC as to Aka's disparate-treatment claim based on the File Clerk hiring decisions. As to the remainder of Aka's claims, the panel was in disagreement. The majority reversed and remanded as to the grant of summary judgment to WHC on (1) Aka's disparate-treatment claim based on the Central Pharmacy Technician hiring decision and (2) Aka's reasonable-accommodation claim. The dissent would have affirmed as to the first of these claims, and would have remanded on different grounds as to the second. WHC moved for rehearing in banc as to these two rulings, which was granted. (Neither WHC nor Aka asked that the panel's holding as to the File Clerk positions be reheard in banc, so that the panel's ruling on that issue stands.) We conclude that it was error for the district court to grant summary judgment to WHC as to Aka's Central Pharmacy Technician disparate-treatment claim and as to his reasonable-accommodation claim.
The principles of summary judgment are sufficiently familiar as to require only brief restatement. We review grants of summary judgment de novo; a party is only entitled to summary judgment if the record, viewed in the light most favorable to the nonmoving party, reveals that there is no genuine issue as to any material fact. See Tao v. Freeh, 27 F.3d 635, 638 (D.C.Cir.1994). "[S]ummary judgment will not lie if ... the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
In addition to his age discrimination claim, Aka in effect makes...
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