UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


SWANKS, MICHAEL

v.

WMATA


98-7115a

D.C. Cir. 1999


*	*	*


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 




__________

n 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


In September 1992, as part of a system-wide spot check, a  supervisor
asked to see Swanks' special police commission. 




__________

n 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


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.


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 


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 




__________

n 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 




__________

n 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


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 




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n 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 




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n 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


Accordingly, we affirm the judgment.




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n 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.