United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 15, 2009 Decided November 10, 2009
No. 08-7040
GLENN KERSEY,
APPELLANT
v.
WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:96-cv-02639-RWR)
Eric L. Siegel argued the cause for appellant. With him
on the briefs was Neil L. Henrichsen.
Bruce P. Heppen, Deputy General Counsel, Washington
Metropolitan Area Transit Authority, argued the cause for
appellee. With him on the brief were Carol B. O'Keeffe,
General Counsel, Mark F. Sullivan, Deputy General Counsel,
Gerard J. Stief, Senior Associate General Counsel, and David J.
Shaffer, Associate General Counsel. Sonia A. Bacchus and
Robert J. Kniaz, Counsel, entered appearances.
Before: HENDERSON and GARLAND, Circuit Judges, and
RANDOLPH, Senior Circuit Judge.
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Opinion for the Court filed by Circuit Judge GARLAND.
GARLAND, Circuit Judge: Glenn Kersey, an employee of
the Washington Metropolitan Area Transit Authority
(WMATA), alleges that WMATA’s refusal to promote him was
the consequence of discrimination and retaliation, in violation of
the Rehabilitation Act of 1973, 29 U.S.C. § 791 et seq.
WMATA contends that its refusal was the consequence of a
binding settlement agreement that had been in place between the
parties since 1990. The district court granted summary
judgment for WMATA, and we affirm.
I
WMATA hired Kersey as a bus operator in 1979. In 1980,
Kersey got into a fight with bus passengers, suffered injuries to
his neck and back, and took a leave paid for by workers’
compensation. Kersey was still on leave four years later when
WMATA terminated him for failing to report two arrests. After
Kersey’s union (Local 922 of the International Brotherhood of
Teamsters) filed a grievance on his behalf, WMATA reinstated
him. In 1988, while still on leave, Kersey got into a fight with
a WMATA employee on WMATA property and was again
arrested. Charged with assault and carrying a deadly weapon,
he was subsequently acquitted by a jury. On February 2, 1989,
WMATA once again terminated Kersey, referencing his medical
disqualification from operating a bus (based on his neck and
back injuries), his record of violent physical confrontations, and
his failure to report arrests. See WMATA Personnel Action
Report (Feb. 2, 1989) (WMATA Supp. App. 115); WMATA
Mem. (Jan. 31, 1989) (WMATA Supp. App. 116-17).
Kersey filed a grievance against this second termination.
On April 23, 1990, Kersey, the union, and WMATA Assistant
General Manager LeRoy Bailey signed an agreement that by its
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terms constituted a “full and final settlement of this grievance.”
1990 Settlement Agreement (WMATA Supp. App. 118). Under
that agreement, Kersey was reinstated “to a position of cleaner-
shifter with the understanding that he will only be permitted to
clean buses and under no circumstance will he be permitted to
operate an authority vehicle.” Id. A subsequent memorandum
of understanding, which Kersey also signed, reiterated that he
“will not be permitted to operate an Authority vehicle (revenue
and non-revenue) under any circumstances.” 1990 Mem. of
Understanding (May 25, 1990) (Supp. App. to Appellant’s Br.,
Ex. B).
Soon after signing these agreements, and notwithstanding
their provisions, Kersey began attempting to apply for positions
that required operating WMATA vehicles. In the summer of
1990, WMATA refused to allow Kersey to take a promotional
test for such a position, informing him that the 1990 Settlement
Agreement precluded him from obtaining the position. See 2d
Am. Compl. ¶ 41. From 1990 through the fall of 1995, Kersey
repeatedly made requests -- which WMATA repeatedly denied
-- for positions that required driving. See id. ¶¶ 41, 43, 47, 59.
During this period, WMATA also repeatedly denied Kersey
promotions into positions -- including the position of mechanic
-- that required driving, citing the no-driving provision of the
1990 Agreement. See Appellant’s Br. 6 (stating that WMATA
asserted the “1990 ‘no-driving’ restriction as the basis for
reject[ing]” Kersey’s promotion applications in 1993 and 1995);
Pl.’s Answers to Def.’s 1st Interrogatories 19-21 (WMATA
Supp. App. 195-97).
Beginning in 1991, Kersey filed a series of complaints with
WMATA, his union, and the Equal Employment Opportunity
Commission (EEOC), charging unfairness, disability
discrimination, and retaliation by both WMATA and the union
in regard to his failure to secure promotions. Beginning in 1992,
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WMATA supervisors had intermittent discussions with the
union about modifying the 1990 Settlement Agreement to permit
Kersey to apply for positions that required driving, but that did
not require driving passengers. 1992 Draft Agreement
(WMATA Supp. App. 121); 1994 Draft Mem. of Understanding
(WMATA Supp. App. 130). In October and November 1995,
WMATA permitted Kersey to take tests for mechanic positions
that required driving, but it ultimately denied him promotion to
those positions -- again citing the no-driving provision. See 2d
Am. Compl. ¶¶ 59-60; Pl.’s Answers to Def.’s 1st
Interrogatories 19.
On November 22, 1996, Kersey sued WMATA in the U.S.
District Court for the District of Columbia, contending (as
refined on this appeal) that WMATA’s 1993 and 1995 refusals
to promote him to positions requiring driving constituted
retaliation and disability discrimination under the Rehabilitation
Act, 29 U.S.C. § 794(a). In 2008, the district court granted
summary judgment in favor of WMATA, finding that the
refusals were the “‘delayed, but inevitable consequence’ of the
express terms of [the 1990] contract.” Kersey v. Wash. Metro.
Area Transit Auth., 533 F. Supp. 2d 181, 191 (D.D.C. 2008)
(quoting Del. State Coll. v. Ricks, 449 U.S. 250, 257-58 (1980)).
The court concluded that Kersey had filed his suit too late under
the applicable statute of limitations, and that, alternatively, he
had failed to rebut WMATA’s legitimate, nondiscriminatory
explanation for its actions. See id. at 198. Because the court’s
alternative ground is sufficient to decide the case, it is our focus
here.
II
We review the district court’s grant of summary judgment
de novo. See Lathram v. Snow, 336 F.3d 1085, 1088 (D.C. Cir.
2003). Summary judgment is appropriate only if “there is no
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genuine issue as to any material fact and . . . the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(c)(2); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48 (1986). A dispute about a material fact is not “genuine”
unless “the evidence is such that a reasonable jury could return
a verdict for the nonmoving party.” Id. at 248.
The Rehabilitation Act provides that “[n]o otherwise
qualified individual with a disability” may be discriminated
against by a federal agency “solely by reason of her or his
disability.” 29 U.S.C. § 794(a). The Act states that “[t]he
standards used to determine whether this section has been
violated in a complaint alleging employment discrimination
under this section shall be the standards applied under
[provisions of] the Americans with Disabilities Act [ADA].” Id.
§ 794(d). The ADA, in turn, bars discrimination against a
“qualified individual on the basis of disability in regard to . . .
conditions[] and privileges of employment,” including
“advancement,” id. § 12112(a), and bars retaliation against an
individual for making a charge under or opposing any practice
made unlawful by that Act, see id. § 12203(a); Smith v. District
of Columbia, 430 F.3d 450, 454-55 (D.C. Cir. 2005).
Where, as here, a claim of discrimination or retaliation is
based upon circumstantial evidence, we analyze the claim under
the burden-shifting framework set out in McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802-05 (1973).1 Under that
framework, “the plaintiff must [first] establish a prima facie case
1
See Fields v. Office of Eddie Bernice Johnson, 459 F.3d 1, 15
n.24 (D.C. Cir. 2006) (holding that disability discrimination claims
under the Rehabilitation Act are “subject to the McDonnell Douglas
framework”); Woodruff v. Peters, 482 F.3d 521, 528 (D.C. Cir. 2007)
(applying “Title VII’s McDonnell Douglas burden-shifting framework
to retaliation claims under the Rehabilitation Act”).
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of discrimination” or retaliation. Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 142 (2000). Once the plaintiff
establishes a prima facie case, the burden shifts to the defendant
to produce evidence of “a legitimate, nondiscriminatory [or
nonretaliatory] reason” for its actions. Id. If the defendant
satisfies that burden, “the McDonnell Douglas framework --
with its presumptions and burdens -- disappear[s], and the sole
remaining issue [is] discrimination [or retaliation] vel non.” Id.
at 142-43 (internal citations and quotation marks omitted).
Thereafter, “to survive summary judgment the plaintiff must
show that a reasonable jury could conclude from all of the
evidence that the adverse employment decision was made for a
discriminatory [or retaliatory] reason.” Lathram, 336 F.3d at
1088.2
2
The district court was correct in holding that in a case like this,
in which the defendant proffers a nondiscriminatory and nonretaliatory
rationale, it is unnecessary to consider whether the plaintiff actually
made out the elements of a prima facie case. See Kersey, 533 F. Supp.
2d at 197 n.14. As we explained in Morgan v. Federal Home Loan
Mortgage Co.:
[O]nce a defendant has proffered . . . a nondiscriminatory
[and nonretaliatory] explanation, it has “done everything
that would be required of [it] if the plaintiff had properly
made out a prima facie case.” U.S. Postal Serv. Bd. of
Governors v. Aikens, 460 U.S. 711, 715 (1983). At that
point, “whether the plaintiff really did so is no longer
relevant,” and the only question is “whether ‘the defendant
intentionally discriminated against the plaintiff.’” Id. at 715
(quoting [Tex. Dep’t of Cmty. Affairs v.] Burdine, 450 U.S.
[248,] 253 [(1981)]).
328 F.3d 647, 654 (D.C. Cir. 2003); see Brady v. Office of Sergeant
at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008).
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In this case, WMATA has come forward with a legitimate,
nondiscriminatory and nonretaliatory reason for refusing to
promote Kersey to positions that required driving: to wit, the
provision of the 1990 Settlement Agreement stating that “under
no circumstance will [Kersey] be permitted to operate an
authority vehicle.” 1990 Settlement Agreement; see 1990 Mem.
of Understanding (providing that Kersey “will not be permitted
to operate an Authority vehicle (revenue and non-revenue) under
any circumstances”). There is no dispute that the statute of
limitations has long run on challenging the 1990 Settlement
Agreement as itself having been motivated by disability
discrimination or retaliation.3 And given the emphatic nature of
the bar against driving contained in that agreement, no
reasonable jury could infer discriminatory or retaliatory intent
from WMATA’s reliance on it to deny Kersey a promotion. Cf.
Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 272 (2001)
(holding that “proceeding along lines previously contemplated”
after an employee files an EEOC complaint “is no evidence
whatever of [the] causality” required to prove retaliation).
Indeed, Kersey concedes that, if the 1990 Settlement Agreement
3
The parties disagree as to whether the relevant limitations period
for claims under the Rehabilitation Act is three or four years.
Compare Appellant’s Br. 11 (three years for discrimination claims and
four years for retaliation claims), with Appellee’s Br. 38-40 (three
years for both). We need not resolve this dispute, as Kersey did not
file the instant suit until six years after signing the 1990 Settlement
Agreement. Although Kersey’s initial brief contested whether that
agreement “was a final employment decision capable of triggering the
statute of limitations,” Appellant’s Br. 9, the agreement’s express
terms make clear that it was, see 1990 Settlement Agreement (stating
that the agreement constitutes a “full and final settlement of this
grievance”). At oral argument, plaintiff’s counsel conceded that the
1990 Settlement Agreement was final and instead rested his case on
the claim (discussed below) that WMATA rescinded that agreement
in 1995. See Oral Argument Recording at 7:02-:25.
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remained in force, he has no viable claim. See Oral Argument
Recording at 7:00-:30.
But Kersey does not concede that the 1990 Settlement
Agreement remained in force. Rather, he contends that
WMATA’s reliance on the agreement is pretext because
WMATA subsequently rescinded the agreement’s no-driving
restriction. Oral Argument Recording at 8:01-10. And as we
have held, proof that an employer’s proffered nondiscriminatory
reason is mere pretext may well be enough to create a genuine
issue of material fact, and hence to defeat a motion for summary
judgment. Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1290 (D.C.
Cir. 1998) (en banc); see Reeves, 530 U.S. at 147.
Citing a section of Williston on Contracts relating to
waiver, Kersey contends that a party may unilaterally rescind (or
waive) a written contractual provision either by “express
declaration” or by “a clear, unequivocal and decisive act.”
Appellant’s Br. 12 (quoting RICHARD A. LORD, 13 WILLISTON
ON CONTRACTS § 39:28 (4th ed. 2000)); see Appellant’s Reply
Br. 3-4. In fact, the Williston treatise’s description of the rule
is a bit more fulsome: “[I]n the absence of an express
declaration manifesting the intent not to claim the right allegedly
waived, there must be a clear, unequivocal, and decisive act of
the party who is claimed to have waived its rights, so consistent
with an intention to waive that no other reasonable explanation
is possible.” WILLISTON ON CONTRACTS § 39:28; see Lacek v.
Wash. Hosp. Ctr. Corp., 978 A.2d 1194, 1200 (D.C. 2009)
(stating that “a waiver must be clear and unambiguous”). The
record in this case does not contain such an “express
declaration” or “clear, unequivocal and decisive act.”
Kersey first asks us to find evidence of rescission in a
proposal that WMATA Assistant General Manager Bailey made
to Kersey’s union in August 1992. Under that proposal, Kersey
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would have been allowed “to advance to” a vacant steam cleaner
position, which required the ability to operate a WMATA
vehicle. 1992 Draft Agreement. Although Kersey contends that
a reasonable jury could infer from this proposal that WMATA
rescinded the no-driving provision, we do not see how. Bailey’s
proposal was by its own terms merely a “DRAFT” that would
not “become[] effective [until] acceptance by Local 922.” Id.
There is no evidence “that the union ever accepted this
proposal,” and WMATA continued to enforce the 1990 no-
driving provision thereafter. Kersey, 533 F. Supp. 2d at 187; see
id. at 197 (noting that “the record establishes conclusively that
WMATA repeatedly enforced the 1990 contract’s driving
prohibition from the time the contract was made through the last
event about which Kersey complains in this suit”). Under these
circumstances, no reasonable jury could conclude that WMATA
made “an express declaration” waiving the provision, or that it
“clear[ly], unequivocal[ly], and decisive[ly]” acted in a way “so
consistent with an intention to waive that no other reasonable
explanation is possible.” WILLISTON ON CONTRACTS § 39:28.
The record also contains another draft agreement with the
union, dated December 7, 1994. See 1994 Draft Mem. of
Understanding. That 1994 Memorandum of Understanding
(MOU) would have permitted Kersey to operate WMATA
vehicles as required for maintenance positions. Id. Like the
1992 Draft Agreement, however, “the record does not establish
that the union ever accepted this MOU.” Kersey, 533 F. Supp.
2d at 188.
Kersey argues, second, that “WMATA unilaterally
rescinded the 1990 Settlement Agreement by permitting [him]
to test for positions that required driving.” Appellant’s Reply
Br. 3. Specifically, Kersey contends that, in 1993 and 1995,
WMATA permitted him to take examinations for mechanic
positions that required some driving. See id. at 19. Union
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representative Eddie Kornegay testified that, although
WMATA’s initial interpretation of the 1990 Settlement
Agreement’s no-driving provision had been that the agreement
also barred Kersey from applying or testing for positions
requiring driving, WMATA later “overturned” that
interpretation and let Kersey “apply for and take exams for
mechanical jobs.” Kornegay Dep. 87 (WMATA Supp. App.
164). And in an internal 1996 communication, WMATA
confirmed that, although Kersey “was initially denied the right
to take the requisite exams due to the settlement agreement,”
later “there was a ‘gentleman’s agreement’ made that reversed
this.” WMATA Mem. (July 22, 1996) (Supp. App. to
Appellant’s Br., Ex. B). Kersey argues that a reasonable jury
could conclude that, by permitting him to take promotion tests,
WMATA acted in a way that was consistent with an intention to
rescind the no-driving provision.
But whether or not permitting testing was consistent with
rescission, no reasonable jury could conclude that WMATA had
“clear[ly], unequivocal[ly], and decisive[ly]” acted in a way “so
consistent with an intention to waive that no other reasonable
explanation is possible.” WILLISTON ON CONTRACTS § 39:28
(emphasis added). As WMATA explained, once it began
discussing with the union the possibility of altering the 1990
Settlement Agreement, WMATA had reason to allow Kersey to
test. See Appellee’s Br. 24. Testing, unlike driving, was not
expressly barred by the 1990 Agreement. See 1990 Settlement
Agreement. And if WMATA, Kersey, and the union had
eventually been able to agree to alter that agreement, then
Kersey’s test results could have positioned him to secure
subsequent promotions. As the district court held, “there is an
obvious ‘other reasonable explanation’ for WMATA's
inconsistent act, namely, that WMATA was willing to let
Kersey take the promotional tests in anticipation of a
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modification of the 1990 contract, a modification that never
materialized.” Kersey, 533 F. Supp. 2d at 196.
We therefore find no genuine issue as to whether the 1990
Settlement Agreement remained in force. As a consequence,
there is no evidentiary support for Kersey’s claim that
WMATA’s reliance on the agreement was mere pretext. And in
the absence of any other basis upon which a reasonable jury
could find that the denials of promotion were the result of
discrimination or retaliation, there is no basis for overturning the
district court’s grant of summary judgment in favor of
WMATA.
III
For the foregoing reasons, the judgment of the district court
is
Affirmed.