# Etim U. Aka v. Washington Hospital Center

> Court of Appeals for the D.C. Circuit · October 9, 1998 · 156 F.3d 1284

URL: https://www.frixlaw.com/law-library/cases/9491541

## Case

- **Full name:** Etim U. AKA, Appellant, v. WASHINGTON HOSPITAL CENTER, Appellee
- **Court:** Court of Appeals for the D.C. Circuit
- **Decided:** October 9, 1998
- **Citations:** 156 F.3d 1284; 332 U.S. App. D.C. 256; 8 Am. Disabilities Cas. (BNA) 1093; 159 L.R.R.M. (BNA) 2467; 74 Empl. Prac. Dec. (CCH) 45,646; 77 Fair Empl. Prac. Cas. (BNA) 1840; 1998 U.S. App. LEXIS 24929; 1998 WL 698396
- **Precedential status:** Published
- **Opinion:** Dissent by Silberman
- **Judges:** Edwards, Wald, Silberman, Williams, Ginsburg, Sentelle, Henderson, Randolph, Rogers, Tatel, Garland
- **Cited by:** 1,259 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9491541

## How later opinions describe it (automated extraction)

- stating that material questions regarding whether the employer’s nondiscriminatory justification for its actions is true will not suffice to support an inference of discrimination if the plaintiff has established pretext in a way that supports an inference of a different nondi…
- concluding that where it was unclear that a supervisor was aware of one aspect of the plaintiffs experience, the court would not rely on that aspect of his qualifications when deciding summary judgment based on the supervisor’s contention that he legitimately chose someone ove…
- holding that “ ‘no additional proof of discrimination is required’ as a matter of course once a plaintiff has shown that a jury could reject the employer’s proffered explanation” for firing a disabled employee (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511, 513, 11…
- explaining that "[i]f a plaintiff shoots himself in the foot” by rebutting the employer’s nondiscriminatory explanation ‘'with evidence that in, fact the real reason” had nothing to do with age or racé discrimination but some other unsavory motive, "surely there is no point in…

## Opinion text

SILBERMAN, Circuit Judge,
with whom WILLIAMS and GINSBURG, Circuit Judges, join, dissenting:
I join Judge Henderson’s opinion, but wish to , make a few brief additional comments. With respect to the first issue in the case, there really is a rather stark difference between the majority’s approach and that of the Second Circuit in Fisher v. Vassar College, 114 F.3d 1332 (2d Cir.1997) (en banc), cert. denied, — U.S.-, 118 S.Ct. 851 , 139 L.Ed.2d 752 (1998). To be sure, both the majority and the Second Circuit en banc .opinion purport to take a middle ground. Compare Maj. Op. at 1291-92 (emphasis added) (“[I]n some instances ... the fact that there are'material questions as to whether the employer has given the real explanation will not suffice to support an inference of discrimination.”); with Fisher, 114 F.3d at 1333 (emphasis added) (“[Ejvidence constituting a prima facie case prior to the employer’s proffer of a reason, coupled with the error or falsity of the employer’s proffered reason may — or riiay not — be sufficient to show illegal discrimination by a preponder-aneé of the evidence.”).
, But a, middle ground — where a plaintiff “in some instances” does, and “in some instances” does not, survive summary judgment merely by. undermining the employer’s proffered reason — is an illusion. The truth is that the majority’s holding ineluctably devolves into the “pretext-only” approach earlier embraced by the panel and by several of our sister circuits, see, e.g., Aka v. Wash. Hosp. Ctr., 116 F.3d 876, 881 (D.C.Cir.1997); Sheridan v. E.I. DuPont de Nemours & Co., 100 F.3d 1061, 1066-72 (3d Cir.1996) (en banc); Anderson v. Baxter Healthcare Corp., 13 F.3d 1120, 1123-24 (7th Cir.1994). That becomes apparent when one scrutinizes the scenarios offered by the majority to reassure us that a plaintiff who discredits an employer’s proffered reason will not always survive summary judgment. .
The majority’s first scenario is “a case in which the plaintiff calls the employer’s explanation into question, but does so in a way that conclusively demonstrates that the real explanation for the employer’s behavior is not discrimination, but some other motivation” — what might be called the plaintiff-shooting-himself-in-the-foot scenario. Maj. Op. at 1291. As an example, the majority points us to a situation where the plaintiff had claimed that he had been fired because of his age. When his employer proffered a number of nondiscriminatory explanations, including the plaintiffs insubordination, the plaintiff responded with evidence that in fact the- real reason he had been discharged was that he had discovered that his employer was violating Securities and Exchange Commission rules and the employer wished to cover this problem up; in so responding, the plaintiff undermined his own claim of age discrimination. See Maj. Op. at 1291-92 (citing Rothmeier v. Investment Advisers, Inc., 85 F.3d 1328 (8th Cir.1996)). The majority thus assures us, rebutting an employer’s proffered reason is not invariably enough: this “class” of plaintiffs will continue to be weeded out at the summary judgment stage. But it should be obvious that this hypothetical — although it once arose — is a sport; a plaintiffs lawyer cannot be expected to put on such self-destructive evidence.
The majority’s second scenario is “a case in which a plaintiff has created only a weak issue of ... fact as to whether the employer’s explanation is untrue, and there is abundant independent evidence in the record that no discrimination has occurred.” Maj. Op. at 1291-92. The majority explains that “inde *1313 pendent evidence ... that no discrimination has occurred” might include whether the hiring officer belonged to the same protected class as the plaintiff or whether the employer has a strong record of equal opportunity employment. See id. This hypothetical betrays the majority’s misunderstanding of the requisite burden of proof in a Title VII case. The majority implicitly requires the employer to produce, in support of its summary judgment motion, “abundant independent evidence ... that no discrimination has occurred.” 1 That approach is inconsistent with the McDonnell-Douglas framework because it places the burden of persuasion on the defendant. As the Supreme Court made clear in Hicks, once the employer produces a legitimate nondiscriminatory reason for the challenged decision, the presumption that the employer discriminated “drops out of the picture” and the plaintiff “at all times bears the burden of persuasion.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511 , 113 S.Ct. 2742 , 125 L.Ed.2d 407 (1993) (citations and internal quotation marks omitted). I agree that “independent evidence” is crucial at the summary judgment stage. But it is independent evidence of discrimination put forth by the plaintiff, not — as the majority suggests— independent evidence of non-discrimination put forth by the defendant.
In practical application, then, the majority’s position promises that plaintiffs will “routinely,” Maj. Op. at 1290, be able to get to juries based on a collateral issue without ever really showing evidence of discrimination — what amounts, de facto, to a broad “wrongful discharge” cause of action for a plaintiff in a protected class.
As noted, the Second Circuit, like the majority, appeared to claim that it too was adopting a middle ground by saying that “the falsity of the employer’s proffered reason may — or may not — be sufficient to show illegal discrimination by a preponderance of the evidence,” 114 F.3d at 1333 , and later that “[t]he sufficiency of a finding of pretext to support a finding of discrimination depends on the circumstances of the case,” id. at 1338 . At the end of the day, however, when one looks at the holding rather than general language, the Second Circuit diverges from the majority in this case. The en banc court left intact the Second Circuit panel’s holding that the district court committed clear error in concluding — based solely on a finding that the university’s proffered nondiscriminatory reasons were pretextual — that the real reason for the challenged tenure decision was discrimination. See id. at 1347 . By contrast, the majority here holds that appellant Aka should have survived summary judgment merely because he created a jury question as to whether the employer’s explanation for not hiring him was false. See Maj. Op. at 1299-1300. Thus, in the Second Circuit, a plaintiff will lose on summary judgment unless he presents independent evidence of discrimination, while in our circuit, a plaintiff will survive summary judgment merely by putting in issue the employer’s proffered nondiscriminatory explanation.
I think the Second Circuit’s actual holding, which accords with the position adopted by the First and Fourth Circuits, see Hidalgo v. Overseas Condado Ins. Agencies, Inc., 120 F.3d 328, 337 (1st Cir.1997); Vaughan v. MetraHealth Cos., Inc., 145 F.3d 197 (4th Cir.1998), is faithful to the notion that the McDonnell-Douglas prima facie ease is only a burden of production shifting device and really has minimal probative value. If an employer meets its burden of producing a nondiscriminatory explanation, then it will not do for the plaintiff simply to rebut that explanation. To survive summary judgment, the plaintiff must always produce independent evidence of discrimination. Only if we require such a showing do we preserve the plaintiffs congressionally-mandated burden to show that the employer’s real reason for its personnel decision was discrimination on *1314 the basis of the plaintiffs membership in a protected class.
❖ * * * * *
Turning to the reasonable accommodation claim, a preliminary point is in order. The majority asserts that this issue is not properly before us. See Maj. Op. at 1303-04 (“Although under our normal procedures we would not consider [the issue] because [it] was not raised in the district court and [was] not within the scope of this court’s grant of in banc review, in deference to our dissenting colleagues we will respond briefly.”). If the majority were to follow our “normal procedures,” however, plaintiffs claim would not be before the court at all. As Aka’s counsel conceded at oral argument, Aka never (ie., neither before the district court, the panel, nor the court en banc) connected his reasonable accommodation claim to any personnel decision or job opportunity, as he is required to do under Marshall v. Federal Express Corp., 130 F.3d 1095, 1099 (D.C.Cir.1997). Even though Marshall would not be controlling in an en banc, the majority does not overrule it or even cite it. Thus, it is the majority that has done Aka’s pleading work for him at this late hour by tying Aka’s reasonable accommodation claim to the specific pharmacy technician position. I also find puzzling the majority’s assertion that the reasonable accommodation issue was not within the scope of our grant of en banc review. Question two of our order granting en banc review asked:
Does a collective-bargaining agreement that permits a disabled employee to be reassigned to a vacant position if, in the “sole discretion” of the employer, the reassignment is “feasible” and “will not interfere with patient care or the orderly operation” of the workplace incorporate a different standard than that of the Americans with Disabilities Act, which requires that a disabled employee be reassigned to a vacant position if doing so would not impose an “undue hardship”?
Order, No. 96-7089 (Jan. 30, 1998). Before one is able to compare the standard of the ADA with that of the collective-bargaining agreement, one must first ascertain the standard of the ADA itself. Thus, analysis of the scope of an employer’s obligation' to make reasonable accommodations by “reassign[ing a disabled employee] to a vacant position,” 42 U.S.C. § 12111 (9)(B) (1994), is clearly within the scope of our order granting en banc review.
Although the majority’s discussion of Aka’s reasonable accommodation claim obscures its relationship to his basic claim, it should be obvious that if Aka’s disparate treatment claim survives the employer’s summary judgment motion and the jury returns a verdict for Aka on this claim, then his reasonable accommodation claim is redundant. Only if Aka loses on his disparate treatment claim could the reasonable accommodation claim become meaningful. But that necessarily means that the reasonable accommodation claim — recall that the contended-for reasonable accommodation is reassignment to a vacant position — requires more of the employer than the disparate treatment claim, which merely relies on an antidiscrimination rule. That is, on Aka’s (and the majority’s) view, the reasonable accommodation claim mandates that the employer grant a preference to disabled employees over nondisabled employees in filling vacant positions.
I think the majority’s reading of the ADA is simply wrong.. The majority overemphasizes the dictionary definition of the word “reassign” and declines to read “reassignment to a vacant position” in the context of the other types of reasonable accommodation listed in 42 U.S.C. § 12111 (9). Those examples share the common theme of regulating the relationship of the disabled employee visa-vis the employer, making no mention of the disabled employee’s rights vis-a-vis other non-disabled employees or applicants — that is, none even alludes to the possibility of a preference for the disabled over the non-disabled. The first type of reasonable accommodation, “making existing facilities used by employees readily accessible to and usable by 'individuals with disabilities,” imposes an obligation on the employer but has no immediate impact on non-disabled employees. Likewise, “job restructuring” and “part-time or modified work schedules” involve accommodations made to the disabled employee in *1315 his current position and thus have no direct effect on non-disabled employees or applicants. And the “acquisition of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities,” 42 U.S.C. § 12111 (9)(B), may impose costs on the employer, but work no harm on nondisa-bled employees. In short, all of these sorts of. reasonable accommodation deal with, the relationship between the disabled employee and the employer, and have no direct impact on the situation of non-disabled employees or applicants.
If the Congress had intended to grant a preference to the disabled — a rather controversial notion' — it would certainly not have done so by slipping the phrase “reassignment to a vacant position” in the middle of this list of reasonable accommodations. Indeed, the catch-all “and other similar accommodations for individuals with disabilities,” 42 U.S.C. § 12111 (9)(B) (emphasis added), strongly indicates that the Congress perceived each of the enumerated types of reasonable accommodation to be of the same character. If “reassignment to a vacant position” is read in context, therefore, it must mean that an employer is obligated — if another type of reasonable accommodation cannot be made in the disabled employee’s current position — to allow a disabled employee to compete (on equal terms with non-disabled employees) for vacant positions. On this understanding of “reassignment to a vacant position,” the phrase fits in with the common theme of regulating the relationship between disabled employee and employer without directly affecting non-disabled employees. This reading accords with the House Report’s recognition that “the employer’s obligation is to consider applicants and individuals without regard to an individual’s disability, or the individual’s need for a reasonable accommodation. But, the employer has no obligation under this legislation to prefer applicants with disabilities over other applicants on the basis of disability.” H.R. Rep. No.-485(II), 101st Cong., 2d Sess., at 56 (1990) (emphasis added).
Contrary to the majority’s assertion, this interpretation of the statute does not render the “reassignment to a vacant position” phrase a “nullity.” Maj. Op. at 1305. I read that provision as designed to prevent an employer from as a matter of policy — either blanket or ad hoc — forbidding employees, including disabled ones, from applying for other positions. See H.R. Rep. No. 485(11), 101st Cong., 2d Sess., at 58 (“[I]t would be a violation for an employer to adopt ... a presumption that no individual with a disability would be interested in moving into a particular job.”).
. To be sure, a Fed. R. Civ P. 56(c) movant does bear the burden of demonstrating that there is "no genuine issue as to any material fact.” See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 , 90 S.Ct. 1598 , 26 L.Ed.2d 142 (1970); Rodway v. United States Dep't of Agriculture, 482 F.2d 722, 727 (D.C.Cir.1973). Here, the employer met that burden by pointing out that the plaintiff admitted in his deposition that he had no evidence for asserting that his alleged disability was a factor in the decision not to hire him. See Washington Hospital Center's Statement Of Material Facts As To Which There Is No Genuine Issue, ¶ 29 at 10 [J.A. 22] (citing Plaintiff Tr. 105-106).

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9491541. Public record. Not legal advice.