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HR rep tells applicant (twice) that sleep apnea will disqualify him from bus driver job; bias claim survives

By Kathleen Kapusta, J.D.

Because an employer failed to rebut a plaintiff’s declaration that he was twice told a sleep apnea diagnosis would disqualify him for a commercial bus driver job, a reasonable jury could find its stated reason for not hiring him—failure to complete the medical certification process—was pretext for disability discrimination. Accordingly, a federal district court in the District of Columbia denied summary judgment against his Rehab Act claim (Hatter v. WMATA, March 27, 2017, Chutkan, T.).

The plaintiff applied for a bus operator position with WMATA, completed a written test, and was extended a conditional offer of employment. Before receiving a full offer, he was required to undergo a medical examination, which he completed three days after receiving the conditional offer. During the exam, he was told his blood pressure was elevated and that a follow-up exam was necessary.

Sleep apnea exams. Upon completion of the follow-up exam, he was ordered to take a separate sleep apnea exam at his own expense. He claimed that WMATA’s HR rep told him before and after the sleep apnea test that he would be disqualified from employment if he had any form of sleep apnea. When the evaluation revealed he had moderate obstructive sleep apnea, he took a second test, which showed improvement but still indicated he had sleep apnea.

The plaintiff chose not to submit the test results to WMATA and because he failed to complete the medical certification process, he was medically disqualified from the bus operator position. He then sued under the Rehab Act.

Otherwise qualified. WMATA argued that the plaintiff was not qualified under the Act because it, and Department of Transportation regulations, required that bus operators complete a medical certification and he failed to do so. But, said the court, this overstated the “otherwise qualified” element of the prima facie case, which requires only that a plaintiff show he was able to perform the job’s essential functions. The “essential functions” section of the bus operator posting here clearly stated that the position’s essential functions included among other things operating a commercial passenger bus, conducting routine bus inspections, submitting accident and incident reports, and communication with customers. Completion of a medical certification was not an essential function.

WMATA contended, however, that certification was a prerequisite for one of the listed functions, such as operating the passenger bus, but it failed to present any evidence that the plaintiff could not obtain this certification. Nor was there any evidence to show he could not operate a bus. To the contrary, he had previously worked as a commercial bus driver and more significantly, WMATA had conditionally offered him the job. Thus, he sufficiently established a prima facie case of discrimination.

Pretext. While WMATA argued that it declined to hire him because he failed to complete the required medical certification process, the plaintiff submitted his own sworn declaration in which he stated that a WMATA HR employee told him he “would be disqualified from the Bus Operator position if [his] test results showed that [he] had any form of sleep apnea,” and again in a follow-up conversation stated that he would be disqualified if he was determined to have sleep apnea.

Declaring that this declaration was self-serving, WMATA submitted the affidavit of its contractor occupational health physician who stated that “[t]he WMATA Medical Services and Compliance Branch has final say on all applicants needing medical certification” and “an applicant is not automatically medically disqualified from employment” due to a sleep apnea diagnosis. While this could be WMATA’s policy, the declaration failed to rebut the plaintiff’s declaration, said the court, finding a reasonable jury could therefore determine that WMATA’s stated explanation for not hiring the plaintiff was merely a pretext for discrimination against him due to his disability.

Especially troubling. To the court, the plaintiff’s unrebutted evidence of the statements made by WMATA’s HR staff was especially troubling. The plaintiff alleged, and WMATA did not dispute, that its own HR staff articulated to him an explicitly discriminatory hiring practice for applicants with sleep apnea. Then after he chose not to proceed with the process because he had been repeatedly told he would be disqualified, WMATA attempted to hide behind his failure to complete the process to assert he was not qualified, the court observed, noting that “Defendant, like any employer, cannot evade liability under federal civil rights laws in this way.” If proven, this practice “would subvert the very purpose of our nation’s civil rights protections, perpetuate the pervasive discrimination against individual with disabilities that Congress expressly sought to remedy, and would lead to unacceptable results,” the court declared.