Swanks v. Washington Metropolitan Area Transit Authority

• Decision Date: 18 June 1999
• Docket Number: No. 98-7115,98-7115
• Parties: Michael SWANKS, Appellee, v. WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

179 F.3d 929

Michael SWANKS, Appellee, v. WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, Appellant.

No. 98-7115.

United States Court of Appeals District of Columbia Circuit.

Argued April 29, 1999.

Decided June 18, 1999.

Appeal from the United States District Court for the District of Columbia (No. 94cv02421).

Lisa D. Fentress argued the cause for appellant. With her on the briefs were Cheryl C. Burke, Robert J. Kniaz and Gerard J. Stief.

Woodley B. Osborne argued the cause and filed the brief for appellee.

Before: EDWARDS, Chief Judge, WALD and ROGERS, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROGERS.

ROGERS, Circuit Judge:

In Swanks v. WMATA, 116 F.3d 582, 583 (D.C.Cir.1997) ("Swanks I"), the court held that receipt of disability benefits under the Social Security Act, see 42 U.S.C. § 423 (1994), did not bar recovery under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 (1994), et seq., and remanded the case to the district court for a jury to determine whether the Washington Metropolitan Area Transit Authority ("WMATA") had discriminated against Michael Swanks. See 116 F.3d at 587-88. Thereafter a jury found for WMATA on Swanks' claim that WMATA had failed to accommodate his request for additional exercise, and for Swanks on the question of whether WMATA had fired him because of his disability. On appeal, WMATA contends that Swanks failed to show that he remained qualified for his position as a special police officer once his commission as a special police officer under District of Columbia law expired, and that he had been discriminated against because of his disability. Inasmuch as the only question before this court is whether, absent an error of law by the district court, no reasonable juror could find that WMATA discriminated against Swanks because of his disability, and there was no legal error and ample evidence on which the jury could reasonably find discrimination, we affirm. ¹

I.

Michael Swanks suffers from a congenital condition known as spina bifida, which affects his urinary tract and leads to incontinence and infections. At the time he was hired in 1989 by WMATA as a special police officer, Swanks informed an interviewer and a WMATA examining physician of his condition. He initially worked at locations in the District of Columbia, Virginia, and Maryland, but his work site "stabilized" in 1991 when he began working at the West Falls Church METRO stop in Virginia. Viewing the evidence most favorably to Swanks, as we must, see Boodoo v. Cary, 21 F.3d 1157, 1159, 1161-62 (D.C.Cir.1994); Anderson v. Group Hospitalization, Inc., 820 F.2d 465, 471-72 (D.C.Cir.1987), Swanks missed work a few more days than allowed as a result of his condition and provided doctor's certificates regarding his absences. ² His performance reviews described him as generally effective and competent, but one noted that his "unscheduled absences ... indicate[ ] a lack of stability which has affected his leadership." In June 1991, he received a letter warning him that "further unscheduled absence could lead to more severe disciplinary action." The following month he provided WMATA with a letter from his doctor explaining that he had spina bifida and that it affected his urinary tract; a few days later, he provided a doctor's statement describing the symptoms as fever, vomiting, diarrhea, nausea, frequent urination, and lower back pain--many of the reasons that Swanks had described when taking sick leave. In addition, Swanks testified that he discussed his symptoms with his WMATA supervisors and doctors. Yet in late 1992, when he asked if he could get either more exercise to accommodate these symptoms or a transfer, Darryl Rice, the captain of WMATA's special police officers, told him that WMATA's tight financial situation made that impossible and that "[t]he best thing for [Swanks] to do was resign and go in[to] the construction field."

In September 1992, as part of a system-wide spot check, a supervisor asked to see Swanks' special police commission. Swanks stated that it was in his wallet, which he had left the day before with his brother-in-law. Upon retrieving the wallet, however, he discovered that the commission was missing and went to the D.C. Metropolitan Police Department for a replacement. He was unaware before then that his commission had expired over a year earlier. Captain Rice subsequently recommended that Swanks be dismissed for not having his commission and for lying about having lost it when WMATA asked if he had it. In October, Swanks was dismissed from his job. When his wife telephoned to ask why her husband was being fired, Captain Rice told her that the termination was due to her husband's absences and not the expiration of the "gun permit." Swanks filed suit under the ADA, alleging that WMATA failed to provide reasonable accommodation for his disability and that it discharged him because of his disability.

II.

Although the court reviews de novo the denial of WMATA's motion for judgment as a matter of law, or in the alternative, for a new trial, see Scott v. District of Columbia, 101 F.3d 748, 752 (D.C.Cir.1996), it is long settled that "the jury's verdict will withstand challenge unless the evidence and all reasonable inferences that can be drawn therefrom are so one-sided that reasonable men and women could not disagree on the verdict." Id. at 753. Because the evidence presented by the plaintiff must be "significantly probative," rather than "merely colorable," Siegel v. Mazda Motor Corp., 878 F.2d 435, 437 (D.C.Cir.1989), "the question for us is not whether there was some evidence, but whether, in terms of the actual quantum and quality of proof necessary to support liability, there was sufficient evidence upon which a jury could properly base a verdict for the [plaintiff]." Id. (quotation marks omitted). In other words, if there was no error of law by the district court in allowing issues to be represented to the jury, the remaining question is whether no reasonable juror could find that WMATA had fired Swanks for a discriminatory reason. See Anderson, 820 F.2d at 472-73; cf. Milone v. WMATA, 91 F.3d 229, 232 (D.C.Cir.1996).

A.

Under the now familiar three-part protocol established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and further elaborated upon in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), and St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993), the plaintiff bears the initial burden to establish by a preponderance of the evidence a prima facie case of discrimination. The employer then bears the burden to produce evidence of a legitimate nondiscriminatory reason for its action. See Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1289 (D.C.Cir.1998) (in banc). If the employer can meet this burden of production,

the focus of proceedings at trial ... will be on whether the jury could infer discrimination from the combination of the plaintiff's prima facie case; (2) any evidence the plaintiff presents to attack the employer's proffered explanation for its actions; and (3) any further evidence of discrimination that may be available to the plaintiff (such as independent evidence of discriminatory statements or attitudes on the part of the employer) or any contrary evidence that may be available to the employer (such as evidence of a strong track record in equal opportunity employment).

Id. at 1289. The plaintiff retains the ultimate burden of persuasion, to demonstrate that he was in fact the victim of intentional discrimination. See id. at 1290.

To sustain a claim under the ADA, Swanks must prove that he had a disability within the meaning of the ADA, that he was "qualified" for the position with or without a reasonable accommodation, and that he suffered an adverse employment action because of his disability. See Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1135 (8th Cir.1999); Martinson v. Kinney Shoe Corp., 104 F.3d 683, 686 (4th Cir.1997); White v. York Int'l Corp., 45 F.3d 357, 360-61 (10th Cir.1995). On appeal, WMATA contends that Swanks was unqualified for his position and therefore cannot establish a prima facie case of discrimination. It further contends that the evidence demonstrated that WMATA terminated Swanks for legitimate, non-discriminatory reasons, specifically that "he did not have a valid police commission and he lied about the status of the license."

The ADA provides that "[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability ... in regard to ... discharge of employees ... and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a) (1994) (emphasis added). The Act defines a "qualified individual" as a person "with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." Id. § 12111(8). It further provides that "consideration shall be given to the employer's judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job." Id.; cf. Carr v. Reno, 23 F.3d 525, 529 (D.C.Cir.1994).

Whether an individual is "qualified" for a job may at times present a pure question of law to be resolved by the court, but it may also, as in this case, be a question of fact that must be resolved by a fact-finder at trial. Thus, for example, in Baert v. Euclid Beverage, Ltd., 149 F.3d 626 (7th Cir.1998), the Seventh Circuit concluded that a factual dispute existed as to whether an employer required a certain type of employee to have a commercial driver's license and consequently, the employer "may not obtain summary judgment...