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Kersey v. Washington Metropolitan Area Transit Authority (WMATA), No. 08-7040 (D.C. Cir. Nov. 10, 2009)

| Nov 9, 2009 | Daily Developments in EEO Law |

Does a government agency’s reliance on a prior settlement agreement to bar an employee from driving an agency vehicle constitute pretext for disability discrimination under the Rehabilitation Act?  The D.C. Circuit today holds that it is not.
Even on a summary judgment record, Mr. Kersey comes across as . . . not a model employee.
“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.”
The plaintiff grieved the second termination, and ultimately entered a settlement agreement providing that “he will only be permitted to clean buses and under no circumstance will he be permitted to operate an authority vehicle.” Nonetheless, the employee brought suit for the agency’s failure to promote him in 1993 and 1995 to positions that required driving, alleging that the denials were motivated by retaliation for complaining about disability discrimination.
Understandably, WMATA contended that the settlement agreement term barring Kersey from driving “was a legitimate, nondiscriminatory and nonretaliatory reason for refusing to promote [him].” Kersey contended that “WMATA’s reliance on the agreement is pretext because
WMATA subsequently rescinded the agreement’s no-driving restriction.” But the panel, affirming the district court, finds as a matter of law that the agreement remained in force:
“Kersey argues, second, that ‘WMATA unilaterally rescinded the 1990 Settlement Agreement by permitting [him] to test for positions that required driving.’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. . . . [But t]esting, 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 modification of the 1990 contract, a modification that never materialized.”
Hence, the agreement was never rescinded and remain a valid basis for barring the employee from driving.

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