# Etim U. AKA v. Washington Hospital Center

> Court of Appeals for the D.C. Circuit · June 20, 1997 · 116 F.3d 876

URL: https://www.frixlaw.com/law-library/cases/9490398

## Case

- **Full name:** Etim U. AKA, Appellant, v. WASHINGTON HOSPITAL CENTER, Appellee
- **Court:** Court of Appeals for the D.C. Circuit
- **Decided:** June 20, 1997
- **Citations:** 116 F.3d 876; 325 U.S. App. D.C. 255; 155 L.R.R.M. (BNA) 2661; 74 Fair Empl. Prac. Cas. (BNA) 245; 1997 U.S. App. LEXIS 14890; 1997 WL 335153
- **Precedential status:** Published
- **Opinion:** Concurring in part by Henderson
- **Judges:** Wald, Henderson, Tatel
- **Cited by:** 206 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled on other grounds by Etim U. Aka v. Washington Hospital Center, 156 F.3d 1284 (1998).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9490398

## How later opinions describe it (automated extraction)

- holding that “courts should assume that the parties intended for every part of an agreement to have meaning ... [and] should give preference to interpretations that do not render any portion of the agreement ineffective or mere surplusage”
- finding that “the district court correctly adopted this heightened standard in its memorandum opinion”
- recognizing that liability standards in the Rehabilitation Act and ADA are "fundamentally similar”
- holding terms of collective bargaining agreement only a factor in weighing reasonableness of accommodation

## Opinion text

KAREN LeCRAFT HENDERSON,
Circuit Judge, concurring in part and dissenting in part:
We all agree that Washington Hospital Center (Washington Hospital) is entitled to summary judgment on Aka’s claims regarding the file clerk positions and, accordingly, I *898 concur in our affirmance on those claims. I strongly disagree, however, with the majority’s conclusion that Aka produced sufficient evidence to survive summary judgment with respect to the central pharmacy technician position. I believe remand for a trial on the question whether Washington Hospital rejected Aka for any of the available positions in violation of Title VII, the ADA or the ADEA is wrong and, accordingly, I dissent from the reversal of the grant of summary judgment on those claims. With respect to Aka’s reasonable accommodation claim, I agree with the majority that a remand is necessary. I write separately on this issue, however, because the majority reaches issues we need not reach.
I.
The majority takes a spectacular wrong turn in its opinion. While purporting to rely on the United States Supreme Court’s decision in St. Mary’s Honor Center v. Hicks, 509 U.S. 502 , 113 S.Ct. 2742 , 125 L.Ed.2d 407 (1993), the majority in fact takes an approach to the availability of summary judgment in discrimination cases not only in conflict with both the language and the spirit of that decision but also with circuit precedent, which itself had initially seemed to veer from Hicks in Barbour v. Merrill, 48 F.3d 1270, 1281 (D.C.Cir.1995), cert. granted in part, - U.S. -, 116 S.Ct. 805 , 133 L.Ed.2d 752 (1996), cert. dismissed, - U.S. -, 116 S.Ct. 1037 , 134 L.Ed.2d 113 (1996) (voluntary settlement by parties).
My disagreement with the majority on Aka’s claims regarding the central pharmacy technician position centers on the following question: Once a defendant has proffered legitimate non-discriminatory reasons under the second step of the McDonnell Douglas framework, what evidence must a plaintiff produce to survive summary judgment? The majority takes the position that the plaintiff automatically survives summary judgment by presenting evidence that questions the employer’s proffered reasons. Maj. Op. at 889 (“Because Aka presented sufficient evidence to discredit Washington Hospital’s proffered reasons for passing him over for the job of Central Pharmacy Technician ..., we reverse the district court’s grant of summary judgment_”) (footnote omitted). Its position, however, is inconsistent with the Supreme Court’s decision in St. Mary’s Honor Center v. Hicks:
We have no authority to impose liability upon the employer for alleged discriminatory employment practices unless an appropriate factfinder determines, according to proper procedures, that the employer has unlawfully discriminated. We may, according to traditional practice, establish certain modes and orders of proof.... But nothing in law would permit us to substitute for the required finding that the employer’s action was the product of unlawful discrimination, the much different (and much lesser) finding that the employer’s explanation of its action was not believable.
509 U.S. at 514-15 , 113 S.Ct. at 2751 (emphasis in original). Thus under Hicks the question we ask is not whether a reasonable factfinder could disbelieve Washington Hospital’s proffered reasons but whether a reasonable factfinder could believe that Washington Hospital’s real reasons were discriminatory. Although the rejection of proffered reasons is relevant, it is not necessarily determinative of the ultimate and, in the words of the Supreme Court, “much different” finding of discrimination.
Consider the case in which an employer’s proffered nondiscriminatory reason is a written evaluation stating that the plaintiff lacked sufficient qualifications for a job. The plaintiff might discredit the evidence with his own evidence that the employer lied on the evaluation. Or the plaintiff might discredit the employer’s reason by offering evidence that he did possess the necessary qualifications. The first method is, according to the Supreme Court, more probative of discrimination than the second. See Hicks, 509 U.S. at 511 , 113 S.Ct. at 2749 (suggesting factfin-der could more readily infer discrimination from disbelief of proffered reasons where disbelief is accompanied by suspicion of mendacity). Moreover, there may be evidence that bears on discrimination besides the defendant’s stated reasons and the plaintiffs *899 attack on their authenticity. For example, an outstanding track record in employment relations -with members of the protected class or the fact that the challenged employment decision was made by a member of the protected class may weigh against a finding of discrimination — even if the employer’s proffered reasons are discredited. See id. at 513-14 , 113 S.Ct. at 2750-51 .
All of this manifests that the connection between pretext and discrimination is intensely fact bound. 1 Our task on summary judgment is to determine whether a reasonable factfinder could find discrimination given the plaintiffs attack on the employer’s stated reasons and in light of any other facts in the record relevant to discrimination (such as employer mendacity, which would be indicative of discrimination, or a nondiserimina-tory employment track record, which would not). One searches the majority opinion in vain, however, for any analysis of the connection between Aka’s attack on Washington Hospital’s proffered reasons and his evidence of “unlawful discrimination.” To the contrary, the majority concludes Aka survives summary judgment simply because Aka’s evidence, if believed, casts doubt on Washington Hospital’s proffered reasons. Maj. Op. at 886-88. The majority cannot, however, through its proof scheme authorize the plaintiff to bypass proving an essential element of his claim in violation of the Federal Rules of Civil Procedure, specifically Rule 56, as interpreted by the Supreme Court in an unbroken line of cases. “[T]he plain language of Rule 56(c) mandates the entry of summary judgment ... against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s ease, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 , 106 S.Ct. 2548, 2553 , 91 L.Ed.2d 265 (1986).
The statement in Hicks , relied upon by the majority, that “[t]he factfinder’s disbelief of the reasons put forward by the defendant ... may, together with the elements of the prima facie case, suffice to show intentional discrimination,” 509 U.S. at 511 , 113 S.Ct. at 2749 , supports the majority’s approach only if we read it to mean that the factfinder may in every case find discrimination on the basis of a prima facie case and evidence of pretext. But such a reading is at odds with the plain meaning of Hicks , which is that there is a difference between pretext and discrimination. I read the Hicks statement upon which the majority relies to mean that in some but not all cases the prima facie case plus pretext suffices to make a triable issue of discrimination and therefore precludes summary judgment for the defendant. Furthermore, this is the reading I thought our court had settled on in Barbour v. Merrill, 48 F.3d at 1281 (“in some cases the combination will be adequate to sustain a finding of discrimination, in others not”) (statement of Williams, J., concurring in denial of rehearing en banc). See also Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 994 (5th Cir.1996) (en banc) (“[I]f the evidence put forth by the plaintiff to establish the prima facie case and to rebut the employer’s reasons is not substantial, a jury cannot reasonably infer discriminatory intent.”) 2 ; LeBlanc v. Great American Ins. Co., 6 F.3d 836, 843 (1st Cir.1993), ce rt. denied, 511 U.S. 1018 , 114 S.Ct. *900 1398 , 128 L.Ed.2d 72 (1994) 3 ; Deborah C. Malamud, The Last Minuet: Disparate Treatment After Hicks, 93 Mich. L.Rev. 2229, 2307-11 (1995) (where plaintiff makes prima facie case and shows pretext, defendant will be entitled to summary judgment in some cases, plaintiff will be entitled to summary judgment in some and triable issues of fact will arise in others).
In Barbour, 48 F.3d at 1277 , and in Kolstad v. American Dental Ass’n, 108 F.3d 1431, 1437 (D.C.Cir.), reh’g in part granted on other grounds, (May 28, 1997) (Nos. 96-7030,96-7047), the court did what the majority fails to do here — adequately explain why a reasonable factfinder could infer discrimination on the basis of the prima facie case and pretext even if the evidence was “thin to the point of virtual invisibility.” Barbour, 48 F.3d at 1281 (statement of Williams, J., concurring in denial of rehearing en banc). Our statement in Barbour , reviewing a post-verdict motion for judgment as a matter of law, that the court “need not speculate about the jury’s reasoning,” 48 F.3d at 1277 , which we repeated in Kolstad, 108 F.3d at 1437 , requires, I believe, explanation. Of course the court does not speculate in the sense of determining how a particular jury reached its conclusion on discrimination. But the court must “speculate” to the extent that it always does when ruling on summary judgment or judgment as a matter of law. That is, we must ask whether a reasonable factfinder could, given the facts of the case, find for the plaintiff on “the ultimate question: whether plaintiff has proven ‘that the defendant intentionally discriminated.’ ” Hicks, 509 U.S. at 511 , 113 S.Ct. at 2749 (quoting Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253 , 101 S.Ct. 1089, 1093 , 67 L.Ed.2d 207 (1981)). The majority, by totally ignoring the ultimate question, departs from Hicks . It also departs from Barbour , in an alarming leap from the case-by-case analysis applied there to an automatic preclusion of summary judgment here.
Here Aka’s attempt to discredit Washington Hospital’s proffered reasons was not sufficiently probative of discrimination for Aka to survive summary judgment. Washington Hospital claims that it hired Jaime Valenzuela over Aka for the pharmacy position because Valenzuela had more relevant experience and demonstrated greater enthusiasm during his interview. The majority points to three factors to impugn Washington Hospital’s reasons: Aka had more education, Aka had more experience in pharmacy services and Aka also exhibited enthusiasm during his interview.
The majority’s discussion of Aka’s and Valenzuela’s comparative education is irrelevant on this record. While it is undisputed that Aka had a master’s degree and Valenzuela had only a high school degree, Aka’s advanced education was not a factor that bolstered his application for the position they both sought. In its “Position Specification” forms Washington Hospital lists educational prerequisites in the section entitled “Qualifications.” For example, the Qualifications section for the position of orderly states that the applicant must have a high school diploma or the equivalent. JA 324. By contrast, *901 the official job description for the central pharmacy technician position lists no educational prerequisite. JA 332. Thus it appears that an individual could fill the pharmacy position without even completing high school. Plainly, neither a college nor master’s degree is required. Indeed, Aka’s “interview summary report” completed by Ann Breakenridge, the official responsible for filling the pharmacy position, indicates that Aka’s education made him overqualified for the job. JA 230 (“Mr. Aka’s MBPA degree could be best utilized in other areas of the hospital.”). Because Aka’s superior education did not — according to undisputed criteria — make him a more desirable candidate for the pharmacy position, it does not cast doubt on Washington Hospital’s proffered reasons for hiring Valenzuela.
As to Aka’s pharmacy experience, the majority states that during his twenty years as an orderly, “Aka had regularly picked up medicine from the pharmacy, stocked medication in the nurses’ work area, and prepared orders for medications[,] ... accumulated extensive knowledge of the pharmacy’s forms [and] knew how most of the medications were used in the treatment of patients[.]” Maj. Op. at 887. As discussed supra, under Hicks we ask whether a reasonable factfin-der could find discrimination and not simply whether a reasonable factfinder could disbelieve Washington Hospital’s proffered reasons. So the question is not whether Aka in fact possessed more relevant experience but whether Washington Hospital’s selection of Valenzuela, in light of their relative qualifications, resulted from discrimination. To answer the latter question we assess not the qualifications Aka actually possessed (on summary judgment we assume he had all of the qualifications stated in his affidavit) but what qualifications were known, or should have been known, by Washington Hospital. Aka could even have been a licensed pharmacist but if Washington Hospital were unaware of his credential, its selection of Valenzuela would not suggest discrimination.
Focussing on those qualifications of Aka known to Washington Hospital, we get a different picture from that painted in Aka’s affidavit. Aka’s application for the pharmacy technician position recites none of the pharmacy experience described in his affidavit. JA 228. 4 By contrast Valenzuela’s application indicates that he had actually worked in a pharmacy for two months and had experience in “pricing, stocking, [and] filling up cassettes.” JA 226. When asked at oral argument whether Aka revealed his pharmacy experience either on his application or during his interview, Aka’s counsel was unable to point to any record evidence that Aka had divulged the information. Instead, Aka’s counsel argued that Breakenridge would have known about Aka’s experience because, in her position, she would have seen orderlies performing pharmacy tasks. There is, however, nothing in the record to support Aka’s claim that Breakenridge would have obtained knowledge of Aka’s pharmacy experience listed in his affidavit. The record does include a Position Specification for the orderly position but the only duty related to pharmacy services is the delivery of items, including “medical materials,” to and from nursing units. JA 323. This description matches Breakenridge’s description of Aka’s relevant experience. In Aka’s interview summary report she indicates that Aka had experience with the “the drug delivery aspect of the job” but notes that the delivery aspect is “a minor part of the technician responsibilities.” JA 229. In short, Aka produced insufficient evidence, if any, on the issue of his pharmacy experience to raise an inference that Washington Hospital’s conclusion regarding Valenzuela’s greater experience resulted from discrimination.
The majority’s third factor is Washington Hospital’s statement that Valenzuela was a more enthusiastic applicant than Aka. Aka attempts to discredit this reason by claiming that he also demonstrated enthusiasm. On summary judgment we accept Aka’s contention that he was enthusiastic during his interview. Even accepting this, however, we *902 cannot discredit that Valenzuela was an enthusiastic applicant also. Were the factfin-der to accept that Aka was enthusiastic, this would not suffice to conclude that Washington Hospital’s claim that Valenzuela was more enthusiastic masked a discriminatory reason. As the majority points out, subjective criteria such as relative enthusiasm must be viewed with caution. Maj. Op. at 887-88. Otherwise, it would be easy for an employer to conceal discriminatory reasons behind subjective assessments which the plaintiff would have little ability, owing to their subjectivity, to discredit. Cf. Robbins v. White-Wilson Med. Clinic, Inc., 660 F.2d 1064, 1067 (5th Cir.1981) (“potential for discrimination [is] inherent in a subjective selection process involving subjective job criteria”), vacated on other grounds, 456 U.S. 969 , 102 S.Ct. 2229 , 72 L.Ed.2d 842 (1982). That is, an employer with no mmdiscriminatory reasons could hide behind an unassailable subjective assessment of an individual. Here, however, the employer has not relied solely on subjective reasons. To the contrary, Washington Hospital offered evidence of Valenzuela’s greater work experience and Aka produced nothing to discredit the evidence in a way that would support an inference of discrimination. 5 If an employer supports an employment decision on the basis of an unre-butted objective factor and adds a subjective reason, this should not preclude it from summary judgment. Cf. Lex K. Larson, 2 Employment Discrimination § 29.06 (2d ed.1996) (‘When the type of job lends itself to objective evaluation but totally subjective procedures are used, these facts may well go a long way to support an inference of discriminatory motive.”) (emphasis added).
Because Aka failed to adduce any evidence on the essential element of discrimination, I would affirm the district court’s grant of summary judgment to Washington Hospital on his Title VII, ADA and ADEA hiring claims. 6 Accordingly, I dissent from the majority’s holding on these claims.
II.
I agree with the majority that the case should be remanded to the district court on the reasonable accommodation issue of the ADA claim. As the majority states, “In general, reassignment should be considered only when accommodation within the individual’s current position would pose an undue hardship.” Maj. Op. at 891 (quoting 29 C.F.R. Pt. 1630, App. § 1630.2(o)). Because the district court failed to address the possibility of accommodating Aka within his orderly position and because it is impossible to conclude from the record whether such an accommodation would be reasonable or would not result in undue hardship, summaxy judgment for Washington Hospital was premature. In the event Aka’s orderly position cannot be modified such that he can return to it, the district court must resolve the reassignment question.
*903 In determining whether Aka’s reassignment to any vacant position constitutes a reasonable accommodation under the ADA, the majority first concludes there is no conflict between reassignment under the ADA, on the one hand, and the posting procedures (section 14.19) and selection procedures (section 8.1(b)) established in the collective bargaining agreement, on the other, because section 14.5 of the collective bargaining agreement, which specifically provides for reassignment of handicapped workers, “creates an exception to the otherwise-applicable posting and selection procedures.” Maj. Op. at 892. That is, in the event the ADA requires reassignment other employees would have no grievance that their posting and selection rights (secured by the collective bargaining agreement) had been violated. To this point I am foursquare with my colleagues.
It seems, however, that the majority is intent on addressing the issue of how to balance rights where there is a conflict between the ADA and a collective bargaining agreement. To that end, the majority concludes that “there is a conflict, however minimal,” Maj. Op. at 894, between the collective bargaining agreement’s reassignment provision (section 14.5) and the ADA’s reassignment because the ADA might require “a few more reassignments,” Maj. Op. at 896-97, than section 14.5 of the collective bargaining agreement. Even if there were a slight inconsistency, however, it would not matter here. Indeed, the majority makes the very point. Maj. Op. at 897 (any inconsistency “appears to present very little difficulty for Aka’s claim that the accommodation is ‘reasonable’ ” and “appears to give Washington Hospital very little purchase for any affirmative defense that the reassignment would impose an ‘undue hardship.’ ”). I therefore take the majority’s entire discussion of the balancing of rights under the ADA and a collective bargaining agreement to be dictum and, like all dictum, carrying the same baggage — unintended consequences in unknown circumstances. 7 For this reason, I disassociate myself from the unfortunate conflicts dictum.
I respectfully dissent from the majority’s reversal of summary judgment on the central pharmacy technician issue and otherwise concur in the judgment.
. The majority incorrectly states that the Fifth Circuit’s interpretation of Hicks in Rhodes is dicta. Maj. Op. at 883. In Rhodes the Fifth Circuit reviewed the district corut’s rejection of the defendant’s post-verdict motion for judgment as a matter of law in an ADEA case. The court first announced the applicable legal standard — that the plaintiff cannot survive the motion merely by discrediting the defendant’s proffered reasons but must also produce sufficient evidence to create a jury question on the issue of discrimination. See 75 F.3d at 994-995 . The court then applied that legal standard in affirming the district court. See id. at 996 (concluding plaintiff's evidence entitled jury to find both pretext and discrimination).
. The majority claims that LeBlanc provides "no support" for my position. Maj. Op. at 883 n.6. To the contrary, LeBlanc (an AJDEA case) takes precisely the position I maintain here, declaring:
In the context of a summary judgment proceeding, Hicks requires that, once the employer has advanced a legitimate, nondiscriminatory basis for its adverse employment decision, the plaintiff, before becoming entitled to bring the case before the trier of fact, must show evidence sufficient for the factfinder reasonably to conclude that the employer's decision to discharge him or her was wrongfully based on age.
6 F.3d at 843 . Thus mere rejection of the employer’s proffered reasons, according to LeBlanc , is not enough for the plaintiff to survive summary judgment. Nor does the fact that the court in LeBlanc considered the discrediting of the employer’s reasons as circumstantial evidence of discriminatory animus “conflict[] sharply,” Maj. Op. at 883 n.6, with anything that I say. Proof that an employer’s proffered reasons are not credible can be circumstantial evidence of discrimination. See Hicks, 509 U.S. at 517 , 113 S.Ct. at 2752 ("proving the employer’s reasons false becomes part of (and often considerably assists) the greater enterprise of proving that the real reason was intentional discrimination”). But discredited reasons do not in every case constitute circumstantial evidence sufficient to survive summary judgment on "the ultimate question of discrimination vel non." United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 714 , 103 S.Ct. 1478, 1481 , 75 L.Ed.2d 403 (1983).
. According to the record, Aka's application does not include a portion requesting information on experience. Cf. JA 226 (application of Valenzuela). Whether Aka did not fill out that portion of the application or whether he decided not to make it part of the record (here or before the district court) is impossible to tell.
. By contrast, in the cases cited by the majority to support its conclusion that subjective reasons should be subjected to close scrutiny, the employer’s non-subjective reasons were rebutted. For example, in Farber v. Massillon Board of Education, 917 F.2d 1391, 1399 (6th Cir.1990), the employer's objective reason was that the individual selected for the position "met the minimum established qualifications.” The record indicated, however, that the individual did not meet the qualifications. Id. Similarly, in Lilly v. Harris-Teeter Supermarket, 842 F.2d 1496, 1506 (4th Cir.1988), the employer's objective reason was that the plaintiffs were less qualified. The court rejected this reason as pretextual based on the district court’s credibility assessments of the defense witnesses. Id. The majority also cites Fischbach v. District of Columbia Department of Corrections, 86 F.3d 1180 (D.C.Cir.1996), but that case sheds no light on the issue because there we found that the employer did not rely on a subjective reason at all. See id. at 1184 ("[Plaintiffl fails, however, to point to any finding by the district court or to any evidence suggesting that the Department relied upon any highly subjective criterion.”).
. Regarding Aka's ADA and ADEA claims he presented insufficient evidence as a matter of law that his age or disability played any role in Washington Hospital's hiring decisions. As great a distance as exists between Aka’s evidence and an inference of discrimination in his ADA and ADEA claims, other factors make the distance even greater in his Title VII claims based on race and national origin. The record manifests Aka’s successful twenty-year employment relationship with Washington Hospital. To note the obvious, his race and national origin did not change during that time. To infer that Washington Hospital would begin discriminating on the basis of his race and national origin after twenty years of non-discrimination strains credulity.
. For example, the majority queries, "If one non-disabled employee entitled to a vacant position under the seniority system in the collective bargaining agreement must wait an extra day before . receiving an identical assignment because the earlier vacancy was filled by a disabled employee pursuant to the ADA, would this entail the ‘sacrifice' of 'rights’ created in other employees under the agreement?” Maj. Op. at 896. This suggests that in assessing the reasonableness of accommodating a handicapped employee, the court must examine what impact reassignment of the handicapped employee would have on other individual employees. At this point the record contains no evidence regarding the effect Aka's reassignment might have on individual employees but the majority states that there is “little difficulty” with Aka’s claim that reassignment is reasonable because the ADA requirements could result in, at most, a few more handicapped reassignments than would the collective bargaining agreement. Maj. Op. at 896-97. But what if an "extra" reassignment permanently excludes another employee from a position he merits and would have otherwise received? According to the majority, is the impact on the non-handicapped employee relevant to reasonableness (or perhaps even determinative)? The majority’s dictum — not surprisingly — does not provide the answer.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9490398. Public record. Not legal advice.