United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 29, 1999 Decided June 18, 1999
No. 98-7115
Michael Swanks,
Appellee
v.
Washington Metropolitan Area Transit Authority,
Appellant
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. s 423 (1994), did not bar recovery under the
Americans with Disabilities Act ("ADA"), 42 U.S.C. s 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. Thereaf-
ter 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 quali-
fied for his position as a special police officer once his
commission as a special police officer under District of Colum-
bia 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
__________
1 On April 8, 1999, the court denied WMATA's motion to postpone
oral argument in view of the Supreme Court's grant of a petition for
writ of certiorari in Cleveland v. Policy Management Sys. Corp.,
120 F.3d 513, 518 (5th Cir. 1997). See 119 S. Ct. 39 (1998). The
Supreme Court has since decided Cleveland and its disposition has
no bearing on the issue before this court. See Cleveland v. Policy
Management Sys. Corp., No. 97-1008, 1999 WL 320795 (May 24,
1999).
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 condi-
tion. He initially worked at locations in the District of
Columbia, Virginia, and Maryland, but his work site "stabi-
lized" 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 re-
garding 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 state-
ment 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.
__________
2 Swanks testified that he used his sick leave only when he was
sick, using twelve days in 1989-90, 18 days in 1990-91, and 22 days
in 1991-92. Swanks also testified that he used annual leave for
vacation and to care for his wife when she was sick.
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 miss-
ing and went to the D.C. Metropolitan Police Department for
a replacement. He was unaware before then that his com-
mission had expired over a year earlier. Captain Rice subse-
quently 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 dis-
missed 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 proper-
ly 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 (1973),
and further elaborated upon in Texas Department of Commu-
nity Affairs v. Burdine, 450 U.S. 248, 252-53 (1981), and St.
Mary's Honor Center v. Hicks, 509 U.S. 502, 506 (1993), the
plaintiff bears the initial burden to establish by a preponder-
ance 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 produc-
tion,
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 ex-
planation 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 dem-
onstrated 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 discrimi-
nate against a qualified individual with a disability because
of the disability ... in regard to ... discharge of employees
... and other terms, conditions, and privileges of employ-
ment." 42 U.S.C. s 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 posi-
tion that such individual holds or desires." Id. s 12111(8). It
further provides that "consideration shall be given to the
employer's judgment as to what functions of a job are essen-
tial, 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 func-
tions 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 employ-
ee to have a commercial driver's license and consequently, the
employer "may not obtain summary judgment by declaring it
has a policy when [the employee] may have evidence that [the
employer] follows the policy [of requiring commercial licens-
es] selectively." Id. at 632; see also Griffith v. Wal-Mart
Stores, Inc., 135 F.3d 376, 383-84 (6th Cir. 1998). The issue
of qualification in the instant case involved a similar factual
dispute.
WMATA contends that the district court erred in denying
its motion for judgment as a matter of law because the
evidence showed that possessing a special police commission
is a requirement for Swanks' position and that Swanks was
therefore not qualified because he had allowed his commission
to expire. The special police officer commission, WMATA
contends, is "tantamount to a professional licence and ...
without this license there is no authority to act in the capacity
of special police officer." In WMATA's view, the job descrip-
tion combined with Captain Rice's testimony "made it clear
that an essential requirement of the job of special police
officer was the maintenance and possession of a special police
commission." Specifically, Captain Rice testified that the
special commission was required of all special police, includ-
ing those stationed in Virginia or Maryland, because "we
work out of the District of Columbia," which requires the
license and which covers 90 to 95 percent of Metro locations.3
He also testified that if the D.C. Metropolitan Police discover
a special officer operating without a commission in the Dis-
trict, WMATA and the officer can be fined.4
The difficulty with WMATA's position is twofold. First,
WMATA's personnel description of the special police officer
job states that an individual only need have the "[a]bility to
obtain and maintain a Special Police Commission." The
"minimum qualifications and experience" include only that the
applicant have graduated from high school (or received an
__________
3 See D.C. Code Ann. s 4-114 (1994) (conferring authority on the
Mayor to appoint special police officers).
4 See D.C. Mun. Regs. tit. 6A, ss 1101.2, 1104.2, 1108.1 (1988).
Section 1104.2 of Title 6A provides that:
Each special police officer appointed under the provisions of
D.C. Code s 4-114 (1981), shall, within twenty-four (24) hours
after the expiration or revocation of his or her commission ...
deliver to the Chief of Police his or her badge, commission, or
other emblem of authority, and upon his or her failure so to do,
he or she shall, upon conviction thereof in the Superior Court
for the District of Columbia, be punished by a fine or [sic] not
more than three hundred dollars ($300).
equivalent certificate), and be at least 21 years old and a
United States citizen (or have an equivalent combination of
education and experience); there is no mention of the com-
mission. If after obtaining the commission, the officer allows
it to expire, official WMATA policy provides that expiration
"will result in your not being permitted to work until the job
position requirement is met;" it does not provide for automat-
ic discharge. Second, Swanks testified that in practice
WMATA only required that he have the ability to maintain
the commission. When he initially informed a supervisor that
he had lost his commission, he testified that he was informed
that he "did not need a gun permit to work in the State of
Virginia" and that he was to report to work. Similarly, when
it later was clear his commission had expired, he was told that
he would be on leave until he renewed it. This evidence of
WMATA's practice was supported by Captain Rice's testimo-
ny describing how new employees would apply for the com-
mission after being hired and that the application process
could last four to eight months.
The district court, therefore, properly denied WMATA's
motion for judgment as a matter of law in light of evidence
making qualification an issue of fact. Based upon the evi-
dence, a reasonable juror could find that possessing the
commission was not a prerequisite to being hired, and that
new employees simply had to possess the ability to obtain
such a commission, and hence the jury had sufficient evidence
to find that Swanks was a "qualified individual" with a
disability under the ADA.
B.
The question remains whether WMATA presented a non-
discriminatory reason for discharging Swanks and if so,
whether Swanks presented evidence upon which a reasonable
juror could rely to conclude that WMATA's true motivation
for firing him was discriminatory. Our standard of review
here is deferential: a jury's verdict may be overturned only if
no reasonable juror could find that WMATA discriminated
against Swanks. Anderson, 820 F.2d at 472-73. The court
considers all of the evidence that the jury had before it, not
only Swanks' prima facie case but also his evidence that he
was fired for his absences rather than his lack of a special
commission. Aka, 156 F.3d at 1289.
The evidence before the jury as to WMATA's true reason
for terminating Swanks was conflicting. On the one hand,
Captain Rice testified, and his memorandum recommending
Swanks' dismissal stated, that the cause for Swanks' dis-
charge was the expiration of the special commission and
Swanks' alleged fabrications when WMATA asked to see his
commission. On the other hand, Swanks testified that he was
unaware that his commission, which he believed he had lost,
had expired.5 Furthermore, his wife's testimony, that Cap-
tain Rice had told her that her husband's absences, rather
than the "gun permit," was the reason for his discharge, was
bolstered by evidence that WMATA had threatened disciplin-
ary action because of his absences and had been unreceptive
to his attempts, with doctor's statements, to explain how his
condition caused these absences.6
The issue of witness credibility "is quintessentially one for
the finder of fact," Aka, 156 F.3d at 1299; see also Baert, 149
F.3d at 633, and the medical evidence permitted a reasonable
juror to find that Swanks' absences were due to his disability.
A reasonable juror could find that WMATA, being unwilling
to tolerate an employee with repeated absences, decided to
apply its special commission requirement more strictly than it
__________
5 Although Swanks maintains that WMATA presented "no evi-
dence of untruthfulness," Captain Rice's October 1992 memoran-
dum stated that "Officer Swanks' inability to provide a copy of his
D.C. Special Police Commission and his subsequent story of his
"brother-in-law" taking his wallet only emphasises [sic] that he: a)
was aware that his commission was invalid; [and] b) wanted to have
time to get to MPD [Metropolitan Police Department] to obtain a
renewal," and further, that Swanks admitted to MPD Detective
Owens that he was aware his commission had expired "but only
after he was confronted with the information."
6 This evidence contradicts WMATA's statement in its brief that
it "had no way of knowing that Mr. Swanks' excessive absenteeism
was a result of his spina bifida occulta."
normally would to remove Swanks because of his disability.
In that sense, WMATA's contention that this case is about
applying the same rules to persons with disabilities as those
without is somewhat ironic inasmuch as the jury apparently
accepted Swanks' position that WMATA applied its commis-
sion requirement inconsistently as an excuse to discharge
him, applying a harsher rule, rather than the same rule, to
Swanks because of his disability.7
To the extent that WMATA contends for the first time in
its reply brief, and at oral argument, that even if Swanks
could show that he was fired for excessive absenteeism,
regular attendance at work is an "essential function" of his
job, its argument comes too late.8 See Chedwick v. Nash, 151
__________
7 Citing Proud v. Stone, 945 F.2d 796, 798 (4th Cir. 1991),
WMATA contends that it would be irrational for it to hire Swanks
knowing of his disability only to fire him because of that same
condition. This argument is specious, however for, unlike the facts
in Proud, different individuals hired Swanks in 1989 (i.e. then-
Lieutenant Kielbiewicz) than fired him several years later in 1992
(i.e. Captain Rice, Inspector Robert Zaza, and Chief of WMATA
Police Burton Morrow). Furthermore, Proud was an age discrimi-
nation case. Age is a fixed variable; here it is possible that
WMATA may not fully have appreciated the amount of absenteeism
that would be required for Swank's disability, or that his condition
could have worsened over time, requiring greater absenteeism. Cf.
id. at 797-98; Waldron v. SL Indus., 56 F.3d 491, 496 n.6 (3d Cir.
1995).
8 WMATA's regulations provide that a special police officer "must
be dependable, regular in attendance and never absent from work
without making advance arrangements with the sergeant, except in
the case of illness or extreme emergency." Def.'s Ex. 7, p 10
(Protective Services Bureau Rules & Regulations for Special Police
Officers). They also define "unsatisfactory attendance" as "unsche-
duled absences so frequent as to indicate that the employee is
undependable." Id. p 24. Captain Rice testified that special police
officers accrue 3.75 hours of sick leave and 3.75 hours of annual
leave every two weeks, in addition to federal holidays. Over the
course of approximately 26 pay-periods an officer would therefore
annually accrue 97.5 hours of sick leave. Although Captain Rice
testified that officers accrue approximately 10 to 11 days of sick
F.3d 1077, 1084 (D.C. Cir. 1998). At trial, WMATA only
argued that Swanks was unqualified for his position, not that
he was fired because of abuse of his sick leave. Trial Tr. at
87:1-4 (Apr. 9, 1998). Abuse of sick leave as the reason for
dismissal would contradict both Captain Rice's testimony and
his memorandum recommending Swanks' dismissal for failure
to have a valid commission and lying about it. Moreover,
during closing arguments, WMATA disavowed any connection
between Swanks' absences and its decision to terminate him.
In that light, "if the only explanations set forth [by the
employer] in the record have been rebutted, the jury is
permitted to search for others, and may in appropriate cir-
cumstances draw an inference of discrimination." Aka, 156
F.3d at 1292. The jury need not adopt a potentially non-
discriminatory explanation that the employer itself has at-
tempted to discredit.9
Finally, WMATA contends in its reply brief that even if it
"had full knowledge that Mr. Swanks' absenteeism was
__________
leave per year, with a tour of duty lasting 7.5 hours, the number of
sick days would equal 13 (97.5 divided by 7.5). By that calculation,
Swanks used less than the full annual amount of sick leave during
his first year and exceeded that amount by five days in his second
year and nine days in his third year.
9 WMATA's reliance on Carr v. Reno, 23 F.3d 525 (D.C. Cir.
1994), is to no avail. Carr was a summary judgment case; by
contrast our review of the jury's verdict is not de novo, and
WMATA did not present evidence, in response to Swanks' prima
facie case, that he was fired for excessive absenteeism. Carr's
excessive absenteeism theory could have been applicable had
WMATA presented such evidence; a jury then might have conclud-
ed that his absences were so "prolonged, frequent, and unpredict-
able" as to make him unqualified to perform the essential functions
of a time-sensitive job. Id. at 530; cf. Carpenter v. Federal Nat'l
Mortgage Ass'n, 165 F.3d 69, 72 (D.C. Cir. 1999). However,
WMATA would still have to show in the instant case that no
reasonable juror could have found that discrimination, rather than
lack of qualification or undue hardship, was the true motivation for
Swanks' discharge. See generally Barth v. Gelb, 2 F.3d 1180, 1186-
87 (D.C. Cir. 1993); Anderson, 820 F.2d at 472.
caused by his disability, there can be no finding of discrimina-
tion because the jury found against Mr. Swanks on the
accommodation issue [claim]." Because Swanks had no op-
portunity to respond to this contention in his brief, the court
need not consider it. See Herbert v. National Academy of
Sciences, 974 F.2d 192, 196 (D.C. Cir. 1992). Even if the
contention were facially appealing, Swanks' accommodation
request was to be allowed more exercise at work and more
sick leave as a way to ward off some of the symptoms of his
condition that caused his absences.10 Finding against him on
that claim, a juror could still reasonably find that WMATA
fired Swanks because of his disability in violation of the ADA.
As the court recognized in Aka, a reasonable accommodation
claim "is not subject to analysis under McDonnell-Douglas,
but has its own specialized legal standards." 156 F.3d at
1288.
Accordingly, we affirm the judgment.
__________
10 Although in Swanks I the court characterized this claim as a
request for more exercise, see Swanks, 116 F.3d at 583, during
rebuttal closing argument, Swanks' counsel stated that Swanks also
wanted more sick leave as an accommodation.