Edna Doak v. Jeh Johnson , 798 F.3d 1096 ( 2015 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 8, 2015 Decided August 18, 2015
No. 14-5053
EDNA DOAK,
APPELLANT
v.
JEH CHARLES JOHNSON, SECRETARY, US DEPARTMENT OF
HOMELAND SECURITY,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:12-cv-01177)
Anabia Hasan argued the cause for appellant. On the
brief was Alan Lescht.
John C. Truong, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Ronald C.
Machen Jr., U.S. Attorney at the time the brief was filed, and
R. Craig Lawrence, Assistant U.S. Attorney. Michelle Lo,
Assistant U.S. Attorney, entered an appearance.
Before: GARLAND, Chief Judge, and MILLETT and
WILKINS, Circuit Judges.
Opinion for the Court filed by Circuit Judge MILLETT.
2
MILLETT, Circuit Judge: Edna Doak suffers from a
variety of debilitating conditions that caused her to miss a
significant amount of work, with little or no predictable
pattern or advance notice to her employer, the United States
Coast Guard. She sought various accommodations from the
Coast Guard, which granted many of her requests. But it
denied her requests for a later start time and the option to
telecommute, among others, because the Coast Guard
determined that those accommodations were neither justified
by the medical documentation Doak had submitted nor
compatible with her job duties. The Coast Guard eventually
fired Doak when her attendance did not improve.
Doak then sued the Secretary of the Department of
Homeland Security (the Department in which the Coast Guard
is housed) (“Coast Guard”) under the Rehabilitation Act, 29
U.S.C. §§ 701 et seq., alleging that it had unlawfully denied
her accommodations and terminated her in retaliation for
requesting those accommodations. The district court granted
summary judgment to the Coast Guard on the grounds that
Doak was not a qualified individual able to perform her job
duties even with reasonable accommodations and that she had
produced no evidence that would permit a reasonable jury to
find that the Coast Guard retaliated against her. We affirm.
I
Statutory and Regulatory Framework
Congress enacted the Rehabilitation Act of 1973, 29
U.S.C. §§ 701 et seq., “to ensure that the Federal Government
plays a leadership role in promoting the employment of
individuals with disabilities,” id. § 701(b)(2). To that end, the
Act requires that federal employers provide “reasonable
accommodations to the known physical or mental limitations
3
of an otherwise qualified individual with a disability.” 42
U.S.C. § 12112(b)(5)(A) (provision of the Americans with
Disabilities Act that is incorporated into the Rehabilitation
Act, see 29 U.S.C. § 791(g) (2012) (to be recodified at 29
U.S.C. § 791(f), see Pub. L. No. 113-128, § 456(a), 128 Stat.
1425, 1675 (2014))); see also 29 C.F.R. § 1614.203(b)
(applying to the Rehabilitation Act the standards in the
Americans with Disabilities Act regulations, 29 C.F.R. Part
1630). An “otherwise qualified individual with a disability,”
42 U.S.C. § 12112(b)(5)(A), is an individual who has “a
physical or mental impairment that substantially limits one or
more major life activities,” id. § 12102(1)(A), and who “can
perform the essential functions” of her job “with or without
reasonable accommodation,” id. § 12111(8).
In determining the “essential functions” of a job,
“consideration shall be given to the employer’s judgment as
to what functions of a job are essential[.]” 42 U.S.C.
§ 12111(8). 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 functions of the job.” Id. The Equal Employment
Opportunity Commission (“EEOC”), in turn, has issued
regulations defining as “essential functions” those
“fundamental job duties of the employment position the
individual with a disability holds or desires.” 29 C.F.R.
§ 1630.2(n). In deciding what is “essential,” the EEOC’s
interpretive guidance first “focuses on whether the employer
actually requires employees in the position to perform the
functions that the employer asserts are essential.” 29 C.F.R.
Pt. 1630, App. § 1630.2(n). If so, then the question of
essentiality comes down to “whether removing the function
would fundamentally alter that position.” Id.
4
The Rehabilitation Act also prohibits retaliation against
an individual for exercising her rights under the Act. As
relevant here, the Act makes it unlawful to “coerce,
intimidate, threaten, or interfere with any individual in the
exercise or enjoyment of, or on account of his or her having
exercised or enjoyed * * * any right granted or protected by
this chapter.” 42 U.S.C. § 12203(b).
The Rehabilitation Act requires individuals to exhaust
administrative remedies before they can file suit to enforce
the Act’s protections. See Barkley v. United States Marshals
Service, 766 F.3d 25, 33 (D.C. Cir. 2014); see also 29 U.S.C.
§ 794a(a)(1). For claims against federal agencies, exhaustion
requires submitting a claim to the employing agency itself.
See Kizas v. Webster, 707 F.2d 524, 543–544 (D.C. Cir. 1983)
(describing administrative exhaustion process for federal
employees as set forth by Title VII, 42 U.S.C. §§ 2000e-5(b),
-16(c), and EEOC regulations promulgated under Title VII);
29 U.S.C. § 794a(a)(1) (incorporating certain “remedies,
procedures, and rights set forth in” Title VII); Barkley, 766
F.3d at 34 (same process under the Rehabilitation Act).
The procedures governing administrative remedies for
discrimination claims against federal agencies are set forth in
EEOC regulations. See generally 29 C.F.R. Part 1614. Those
regulations provide the procedural framework for processing
complaints of discrimination not just under the Rehabilitation
Act, but also under a panoply of federal anti-discrimination
laws, including Title VII, 42 U.S.C. §§ 2000e et seq.
(discrimination on the basis of race, color, religion, sex, and
national origin), the Age Discrimination in Employment Act,
29 U.S.C. §§ 621 et seq., the Equal Pay Act, 29 U.S.C.
§ 206(d) (sex-based wage discrimination), and the Genetic
Information Nondiscrimination Act, 42 U.S.C. § 2000ff. See
29 C.F.R. § 1614.103(a).
5
One of those regulations requires individuals who believe
they have been the victim of unlawful discrimination under
the relevant laws to consult with an Equal Employment
Opportunity (“EEO”) Counselor at the agency where they are
employed or sought employment “prior to filing a complaint
in order to try to informally resolve the matter.” 29 C.F.R.
§ 1614.105(a). “An aggrieved person must initiate contact
with a Counselor within 45 days of the date of the matter
alleged to be discriminatory or, in the case of personnel
action, within 45 days of the effective date of the action,” id.
§ 1614.105(a)(1), although that deadline has exceptions, id.
§ 1614.105(a)(2).
If that informal counseling fails to resolve the matter, the
aggrieved individual may then file a complaint with the
agency that allegedly discriminated against her. See 29
C.F.R. § 1614.106. The filing of that complaint begins the
formal administrative grievance process, through which the
agency investigates, considers, and decides the merits of the
complaint. See id. §§ 1614.107–110. Once that process
concludes or stalls, the Rehabilitation Act authorizes the filing
of a lawsuit in federal court by “any employee or applicant for
employment aggrieved by the final disposition of [her
administrative] complaint, or by the failure to take final action
on such complaint.” 29 U.S.C. § 794a(a)(1).
Factual Background
From November 2007 until October 2010, Edna Doak
worked in the Office of Acquisition Resources Management
at the United States Coast Guard, first as a Program Analyst,
then as a Management Program Analyst. Her day-to-day
responsibilities included monitoring the budget for the Coast
Guard’s Surface Program, making procurement requests, and
attending in-person meetings with a program manager and
6
support team to plan for the building of boats. Doak’s
supervisors were Greg Cohen and Rory Souther. Doak’s unit
normally operated between the hours of 6:00 a.m. and 6:00
p.m., Monday through Friday. When authorized, employees
could work flexible schedules within those hours as long as
they were physically present in the office during the core
business hours of 9:30–10:30 a.m. and 1:30–2:30 p.m.
Doak’s start time was 8:15 a.m., the latest in her unit. Her
schedule consisted of eight “nine-hour days” and one “eight-
hour” day, with a regular day off, every two weeks.
Doak suffered from hypothyroidism and depression. In
the summer of 2009, Doak suffered closed head trauma in a
car accident, exacerbating her depression and resulting in
hyperthyroidism, migraines, pain in various locations
throughout her body, muscle spasms, memory loss, and
obstructive sleep apnea. Doak accordingly submitted a
request for intermittent leave under the Family and Medical
Leave Act (“FMLA”), which the Coast Guard approved in
September 2009.
Doak’s illnesses and the side effects of her prescribed
medications caused her to miss a significant amount of work
over the next few months and often made it difficult for her to
get to work on time. Around December 2009 or January
2010, Cohen met with Doak to discuss her work-attendance
issues. Cohen returned Doak to working an eight-hour day,
and explained that he would reauthorize the nine-hour,
regular-day-off schedule once her attendance improved. He
also informed Doak that she was using up her leave balances
at a rapid clip.
On January 19, 2010, Cohen notified Doak in writing that
she had nearly exhausted her twelve weeks of FMLA leave
and had negative balances of 233 hours of sick leave and
7
35.15 hours of annual leave. Cohen also explained to Doak
that her continued absences and late arrivals were having a
negative impact on the office’s work. He added that Doak’s
repeated failures to request leave in advance violated the
procedures for requesting leave, and that continued failure to
follow those procedures could result in disciplinary action.
Cohen also specifically invited Doak to tell him if she needed
an accommodation to do her job.
After receiving that memorandum, Doak was again
absent without leave on January 25 and January 26, 2010. On
the day of the first absence, Cohen wrote Doak another
memorandum, reminding her of the appropriate procedures
for requesting leave and asking her to tell him if she had a
medical condition that required accommodation. On February
22, 2010, Cohen officially reprimanded Doak by letter for
both the January 25th and 26th absences without leave and for
failing to follow leave-request procedures.
Doak sought her union’s assistance with this issue, after
which the Coast Guard agreed to hold the letter of reprimand
in abeyance while Doak provided medical documentation to
support her absences. On March 9th, Doak notified Cohen
that she was submitting three letters from her doctors directly
to the Coast Guard’s medical review team. The medical
review team determined that Doak’s letters failed to justify
her absences. As a result, Cohen issued a “Request for
Medical Documentation” on March 24th, that directed Doak
to provide additional information, by April 9th, on the “nature
or diagnosis of [her] current condition(s),” including
“[r]ecommendations regarding any specific accommodations
that are warranted to enable you to perform the essential
functions of your position[.]” J.A. 138–139.
8
A week after the April 9th deadline, Doak submitted her
first request for accommodation and supporting medical
documentation to human resources. She included a letter
from her doctor, Elizabeth P. Berbano, explaining that Doak
suffered from major depressive disorder, obstructive sleep
apnea, hyperthyroidism, and migraines. Dr. Berbano
recommended the following accommodations for Doak: (i)
telecommuting; (ii) full-spectrum light for her work space;
(iii) an anti-glare computer screen; (iv) a cubicle in an area
free from cold air currents; (v) a work schedule of 11 a.m. to
7 p.m. due to Doak’s difficulty getting up in the morning; and
(vi) the option of weekend hours to make up for missed
weekday hours.
A Coast Guard doctor, Erica Schwartz, reviewed Dr.
Berbano’s letter and recommended that Cohen provide as
accommodations the full-spectrum light and an anti-glare
computer screen, along with noise-canceling headsets and a
dark, private area for her use when medically necessary. Dr.
Schwartz did not address the requests for telework, weekend
hours, and a later schedule, but later testified that the omission
was due to her view that those requests were not medically
supported.
On May 6th, Cohen provided Doak with a noise-
canceling headset and an anti-glare screen for her computer,
permitted her to wear sunglasses in the office as needed,
asked that three lights above her desk be turned off, and
identified break rooms that she could use as necessary for
medical reasons. Cohen also offered to move Doak to a
cubicle in an area that was darker, albeit farther away from
her work team. In a memorandum to Doak, Cohen explained
that he did not approve an 11:00 a.m. start time because
Doak’s position required her to interact daily and frequently
with various staff, and Doak would be unable to perform
9
those duties with the modified schedule, burdening other
employees who would have to pick up work she could not
perform.
Doak replied to Cohen on May 21st, proposing a
“temporary 10:00am–6:30pm schedule for a month or two.”
J.A. 459. Doak also explained that, although the new darker
cubicle location offered to her “does have the conditions to
reduce the occurrence of migraines,” she did not want to
“move there because it is away from my team and ‘project
interactions’ would be largely reduced.” J.A. 460. Cohen
responded that a 10:00 a.m. start time was unworkable, and
offered instead to change Doak’s start time from 8:15 a.m. to
9:00 a.m.
On May 24th, Cohen issued the official reprimand for
Doak’s absences without leave in January on the ground that
she had failed to provide adequate documentation to justify
them. Cohen further noted that Doak had been absent without
leave for approximately 23.5 hours the week of May 10th, and
that she had accumulated an additional 99 hours of
unscheduled absences in just the last two months. Cohen
further explained to Doak that she had hundreds of hours of
negative balances of annual leave, sick leave, and leave
without pay.
Seven weeks later, Doak submitted another letter from
Dr. Berbano. The letter explained that Doak “suffers from
periodic migraines” and “[w]hen she experiences acute onset
of a migraine, she is incapacitated due to the pain and cannot
concentrate on the tasks at hand, whether at her job or at
home.” J.A. 462. Dr. Berbano recommended that Doak be
given a start time of 9:30 a.m. or the option to telecommute
while she adjusted to new medication.
10
The chief doctor of the Coast Guard’s Division of
Occupational Medicine reviewed Dr. Berbano’s letter and
concluded that it did not medically justify “an arbitrary start
time of 0930 instead of 0830 or 0900.” J.A. 466. The chief
doctor also opined that, in light of Doak’s unpredictable
condition, Doak could not work a fixed schedule because her
conditions and the treatment for them completely and
unpredictably incapacitated her.
On July 23rd, Doak met with her supervisors, Souther
and Cohen, to address her ongoing attendance issues. Doak
agreed to a 9:00 a.m. start time, but soon proved unable to
arrive at that time with any consistency.
On August 9th, Cohen provided Doak with a notice
recommending that she be terminated because of her (i)
“medical inability to perform the essential duties of [her]
position,” including “maintain[ing] [a] regular work
schedule,” and (ii) extensive hours during which she was
absent without leave. J.A. 197. The notice indicated that,
from January 31, 2010 to August 9, 2010, Doak missed
approximately 52% of her scheduled work hours. The notice
further explained that Doak’s position required her to be in
the office on a daily basis due to the need to interact
frequently with project staff. After weighing the matter
further, Souther ultimately decided, on September 30, 2010,
to terminate Doak’s employment, effective October 8, 2010.
Procedural Background
Doak contacted an EEO Counselor at her employer on
October 6, 2010, to challenge her termination. Doak and the
Coast Guard then entered into a settlement agreement,
allowing Doak to retire in lieu of termination. Doak revoked
that agreement shortly thereafter, and on February 22, 2011,
11
she filed a formal complaint with the Office for Civil Rights
and Civil Liberties at the Coast Guard’s parent agency, the
United States Department of Homeland Security, alleging that
the Coast Guard had unlawfully discriminated against her on
the bases of race, national origin, disability, sex, and age, and
that her supervisors had retaliated against her exercise of her
rights under the Rehabilitation Act. The Office issued its
final decision rejecting Doak’s complaint on June 19, 2012,
finding that the Coast Guard “engaged in good faith efforts to
accommodate” Doak. J.A. 294. The Office further concluded
that Doak’s supervisors offered a legitimate, non-
discriminatory, and unrebutted reason for terminating Doak:
her “medical inability to perform the essential functions of her
position due to her inability to maintain a regular schedule,
and her significant number of [absences without leave].” Id.
Doak filed suit against the Secretary of Homeland
Security on July 18, 2012. She alleged that the Coast Guard
discriminated against her in violation of the Rehabilitation
Act by (i) twice reprimanding her and then firing her on
account of her disability (the “disparate treatment” claims);
(ii) failing to provide reasonable accommodations for her
disability (the “accommodation claims”); and (iii) firing her in
retaliation for requesting reasonable accommodations (the
“retaliation claim”). The Secretary moved to dismiss the
accommodation and disparate treatment claims under Federal
Rule of Civil Procedure 12(b)(1), arguing that Doak had not
properly exhausted her administrative remedies because her
contact with the EEO Counselor was untimely, and that
default stripped the district court of jurisdiction over those
claims. The Secretary also moved for summary judgment on
all of Doak’s claims.
The district court granted the Secretary’s motion to
dismiss Doak’s accommodation claims for lack of subject
12
matter jurisdiction. Doak v. Johnson, 19 F. Supp. 3d 259,
268–270 (D.D.C. 2014). The court explained that Doak
requested accommodations on April 16, 2010 and July 16,
2010, and the Coast Guard responded on May 6th and July
20th. Id. at 268–269. Because Doak first contacted an EEO
Counselor on October 6, 2010—78 days after the July 20th
response—the court concluded that Doak had not complied
with the regulatory requirement that such contact occur within
45 days of the allegedly discriminatory action, 29 C.F.R.
§ 1614.105(a)(1). Id. at 268–270. 1
In the alternative, the district court granted the
Secretary’s motion for summary judgment in its entirety. As
to the accommodation claims, the court reasoned that Doak’s
requested schedule constituted an “open-ended ‘work
whenever you want schedule’ that is unreasonable as a matter
of law.” Doak, 19 F. Supp. 3d at 276. The court also ruled
that attending regular on-site meetings was an essential
function of Doak’s job that no reasonable accommodation
would have enabled her to perform. Id. at 278–280.
As to the retaliation claim, the district court concluded
that Doak’s claim failed because she had not proffered any
evidence to rebut the Coast Guard’s legitimate, non-
discriminatory reason for its action: that it terminated Doak
due to her repeated absences, failure to comply with leave
procedures, and the detrimental effect Doak’s absences had
on her coworkers. Doak, 19 F. Supp. 3d at 280–281.
1
The court applied the same reasoning to the disparate treatment
claims arising from the letters of reprimand and the notice
proposing termination. Doak, 19 F. Supp. 3d at 270 & n.13. Doak
has not raised any disparate treatment claims on appeal.
13
II
Analysis
Jurisdiction
The district court concluded that it lacked subject matter
jurisdiction over most of Doak’s claims because Doak failed
to comply with the regulatory requirement that an aggrieved
person contact an EEO Counselor “within 45 days of the date
of the matter alleged to be discriminatory[.]” 29 C.F.R.
§ 1614.105(a)(1). Although the Coast Guard never objected
to the timing of Doak’s complaint in the administrative
proceedings—and, in fact, issued a final administrative
decision disposing of Doak’s administrative complaint on the
merits—the district court believed it was duty-bound to
consider the administrative mistiming anyway. The district
court read Spinelli v. Goss, 446 F.3d 159 (D.C. Cir. 2006), to
hold that timely administrative exhaustion is a jurisdictional
requirement under the Rehabilitation Act.
Spinelli does not reach that far. In Spinelli, this court
addressed the jurisdictional consequence of a plaintiff’s
wholesale failure to file an administrative complaint or to
obtain any administrative decision at all. 446 F.3d at 162.
This court held that federal court “jurisdiction depended on
the ‘final disposition of [an administrative] complaint.’” Id.
(alteration in original) (quoting 29 U.S.C. § 794a(a)(1)).
Because the plaintiff in Spinelli never filed an administrative
complaint, there was never any final administrative
disposition of a complaint, or any reviewable final
administrative action at all. Id. Under those circumstances,
Spinelli held that the court lacked jurisdiction over the
plaintiff’s claims. Id.
14
That is all Spinelli held. In so ruling, the court did not
attach irremediable jurisdictional consequence to every
procedural misstep that happens during exhaustion of the
administrative process. And certainly not for defaults that
occur in the informal process created by EEOC regulation as a
non-statutory step preceding the formal agency exhaustion
required by statute. To the contrary, this court has ruled that
“the administrative time limits created by the EEOC erect no
jurisdictional bars to bringing suit.” Bowden v. United States,
106 F.3d 433, 437 (D.C. Cir. 1997); see also Steele v. Schafer,
535 F.3d 689, 693 (D.C. Cir. 2008) (45-day time limit in 29
C.F.R. § 1614.105(a) is subject to equitable tolling). Instead,
those time limits “function[] like statutes of limitations,” and
thus “are subject to equitable tolling, estoppel, and waiver.”
Bowden, 106 F.3d at 437. While those cases involved claims
under Title VII rather than the Rehabilitation Act, nothing in
the Rehabilitation Act or the EEOC regulation warrants
treating the same administrative time limit differently based
on which claims are involved.
Spinelli thus does not bar jurisdiction here because Doak
filed and received a final disposition of her administrative
complaint. As this court has held, issues concerning how a
claimant participates in that administrative process, both
procedurally and substantively, are not of jurisdictional
moment. Koch v. White, 744 F.3d 162, 164–165 (D.C. Cir.
2014) (failure to participate properly in administrative review
of Rehabilitation Act claim can be “excused” by the district
court, and thus is non-jurisdictional).
That approach, moreover, accords with recent Supreme
Court precedent holding that “procedural rules, including time
bars,” are jurisdictional only “if Congress has clearly state[d]
as much.” United States v. Wong, 135 S. Ct. 1625, 1632
(2015) (internal quotation marks omitted). Congress has not
15
done so here. Nothing in the Rehabilitation Act refers to
administrative time limits at all, let alone “in jurisdictional
terms” or in any way suggesting that the jurisdiction of the
district courts hinges on timely compliance. Zipes v. Trans
World Airlines, Inc., 455 U.S. 385, 394 (1982). Since
Congress has not “‘clearly state[d]’ that the rule is
jurisdictional,” we will not treat it as such. Sebelius v. Auburn
Regional Medical Center, 133 S. Ct. 817, 824 (2013)
(alteration in original) (quoting Arbaugh v. Y&H Corp., 546
U.S. 500, 515–516 (2006))).
Because the deadline for contacting an EEO Counselor is
not jurisdictional, Doak’s failure to comply with it may be
waived by the agency. And that is what the Coast Guard has
done. It never raised the 45-day time limit during the
administrative proceedings. Indeed, it “not only accept[ed]
and investigate[d] [Doak’s] complaint, but also decide[d] it on
the merits—all without mentioning timeliness[.]” Bowden,
106 F.3d at 438. Having done so, the Coast Guard “now has
no legitimate reason to complain about a judicial decision on
the merits.” Id. at 438–439.
The same reasoning disposes of the Coast Guard’s
argument that Doak’s failure to cooperate with its
investigation bars her claim. Dismissal based on an
employee’s failure to cooperate in the investigation is justified
only when the lack of cooperation “forces an agency to
dismiss or cancel the complaint by failing to provide
sufficient information to enable the agency to investigate the
claim.” Wilson v. Pena, 79 F.3d 154, 164–165 (D.C. Cir.
1996). That did not happen here. “Because the agency was
able to take final action on the merits of [Doak’s] complaint,
h[er] suit cannot be barred solely for any default in
responding to the agency’s request for information.” Id. at
164; see also Koch, 744 F.3d at 164–165.
16
The Accommodation Claims
“We review de novo the district court’s grant of summary
judgment, and can affirm only if the record demonstrates both
that ‘there is no genuine issue as to any material fact,’ and
that ‘the moving party is entitled to a judgment as a matter of
law.’” Solomon v. Vilsack, 763 F.3d 1, 8 (D.C. Cir. 2014)
(quoting Pardo–Kronemann v. Donovan, 601 F.3d 599, 604
(D.C. Cir. 2010)).
To withstand summary judgment on her accommodation
claims, Doak had to come forward with sufficient evidence to
allow a reasonable jury to conclude that (i) she was disabled
within the meaning of the Rehabilitation Act; (ii) her
employer had notice of her disability; (iii) she was able to
perform the essential functions of her job with or without
reasonable accommodation; and (iv) her employer denied her
request for a reasonable accommodation of that disability.
See Solomon, 763 F.3d at 9.
Doak assails the district court’s conclusion that her
request to change her work hours to an 11:00 a.m. start time,
with optional weekend hours and the ability to telecommute,
sought an “open-ended ‘work whenever you want schedule’
that is unreasonable as a matter of law.” Doak, 19 F. Supp.
3d at 276. We agree with Doak. “[I]t is rare that any
particular type of accommodation will be categorically
unreasonable as a matter of law.” Solomon, 763 F.3d at 10.
Certainly nothing about the accommodations Doak requested,
on their face, suggests that they are so inherently unworkable
for all employees in all workplaces that the law would
categorically disqualify them from consideration. Quite the
opposite, the Rehabilitation Act expressly recognizes “job
restructuring” and “part-time or modified work schedules” as
17
reasonable accommodations, 42 U.S.C. § 12111(9)(B), and
the federal government’s own personnel regulations permit
agencies to establish work schedules that are compressed or
have substantial flexibility in their hours, 5 C.F.R.
§ 610.111(d).
Doak’s claim fails nevertheless because, even with her
desired schedule accommodation, Doak would have been
unable to perform an essential function of her job: being
present in the office to participate in interactive, on-site
meetings during normal business hours and on a regular basis.
The Coast Guard proffered substantial evidence that in-
person attendance at such meetings was an essential function
of Doak’s job. A December 18, 2009 progress note in Doak’s
file, for example, states: “Due to * * * [required] daily
meetings with project managers and staff and required
interaction with the project team and other surface business
managers[,] [Doak] will be behind her contemporaries due to
absences this period.” J.A. 115. Cohen’s January 19, 2010
memorandum similarly explained that Doak’s job “requires
daily interaction with the project staff, contracting, and
resource staffs,” and that her “unplanned absences do not
allow us to provide timely support to [a particular boat-
building project].” J.A. 120. Cohen again noted in his
August 9, 2010 notice proposing Doak’s termination that a
“critical part” of Doak’s job was “[p]roject interaction,”
which required her “to be in the office during normal work
hours in order to interact with project staff.” J.A. 201.
Finally, Souther explained in his termination decision that
Doak’s “frequent unscheduled absences prevent [her] from
participating in program meetings and other work group
collaboration essential to full performance, creating an undue
hardship on co-workers required to perform these
responsibilities on [Doak’s] behalf.” J.A. 212–213.
18
A later start time would not have allowed Doak to fulfill
those responsibilities because Doak’s original 8:15 a.m. start
time was already the latest start time on her team. Once
Doak’s disabilities delayed and disrupted her attendance still
further, her inconsistent schedule made holding same-day
meetings especially difficult. In the four months preceding
her termination, Doak had proven unable to arrive even as late
as 9:00 in the morning on a regular basis, and she often did
not arrive at all. The Coast Guard showed that Doak’s
absences undermined her ability to perform her job because
“not all of” Doak’s “job functions were portable due to the
customer service expectations, which largely require on-site
presence to fulfill.” J.A. 429. “Spontaneous meetings” with
various personnel “occur frequently[,] * * * often requir[ing]
attendees to review the same documentation at the same
time.” Id. Some files could not be conveniently accessed
remotely, and the pace of work “can sometimes be too fast for
anything other than on-site presence.” J.A. 430. Co-workers
had to step in to pick up the slack, often on short notice, due
to Doak’s frequent and unpredictable absences and late
arrivals, causing them an “undue burden” and “negatively
impact[ing] the accomplishment of the agency’s mission.”
J.A. 431–432.
There is also evidence that Doak’s unpredictable
migraines incapacitated her, regardless of the time of day or
where she was located. As Dr. Berbano explained, when
Doak experiences a migraine “she is incapacitated due to the
pain and cannot concentrate on the tasks at hand, whether at
her job or at home performing routine activities of daily
living, such as cooking and doing chores.” J.A. 462. And the
medicine Doak would then have to take to treat the migraines
would “completely incapacitat[e] her while she is under the
influence of the medication[.]” Id.
19
Doak failed to come forward with evidence reasonably
disputing any of that. In fact, all Doak points to is a single
sentence in her declaration stating conclusorily that “an 11:00
a.m. start time would not have interfered with my ability to do
my job because there were few project interactions,” and then
added the non-responsive observation that “I had not been
required to travel or attend an off-site class in over a year.”
J.A. 250. That sentence, devoid of any detail, explanation, or
evidentiary corroboration, contradicts Doak’s own deposition
testimony, in which she confirmed that, by May 2010, her job
involved interactive meetings “on a regular basis.” J.A. 538.
It also contradicts Doak’s own pre-litigation actions in which
she declined to relocate to a cubicle in a darker area, even
though it would have reduced “the occurrence of migraines,”
because it was “away from [her] team and ‘project
interactions’ would be largely reduced.” J.A. 460. At her
deposition, Doak confirmed that was the reason she declined
the proffered accommodation. J.A. 539.
In short, the documentary and testimonial evidence in the
record—including Doak’s own testimony—points only one
way, demonstrating that it was essential to Doak’s job that she
be present for interactive meetings during normal business
hours and that the accommodations she requested would not
have enabled her to perform that function. Doak’s bare,
conclusory statement to the contrary in her declaration—
without any supporting detail—is insufficient to create a jury
issue in light of overwhelming and undisputed evidence that
included her own prior sworn testimony. See Pyramid Sec.
Ltd. v. IB Resolution, Inc., 924 F.2d 1114, 1123 (D.C. Cir.
1991) (“Courts have long held that a party may not create a
material issue of fact simply by contradicting its prior sworn
testimony.”). Because Doak was unable to perform this
essential function of her job even with reasonable
accommodation, the Coast Guard was entitled to summary
20
judgment on her accommodation claims. See Carr v. Reno,
23 F.3d 525, 529–530 (D.C. Cir. 1994) (employer entitled to
summary judgment because plaintiff’s job required physical
presence to manually pick up and code papers by a daily
deadline and her requested accommodation would not have
enabled her to perform that essential function); see also
Samper v. Providence St. Vincent Medical Center, 675 F.3d
1233, 1238 (9th Cir. 2012) (employer entitled to summary
judgment because on-site regular attendance was an essential
function for neo-natal nurse and plaintiff’s requested irregular
schedule compromised that essential function).
The Retaliation Claim
To establish a prima facie case of retaliation based on
circumstantial evidence, a plaintiff must show that “(i) ‘[s]he
engaged in statutorily protected activity’; (ii) ‘[s]he suffered a
materially adverse action by h[er] employer’; and (iii) ‘a
causal link connects the two.’” Solomon, 763 F.3d at 14
(alterations in original) (quoting Jones v. Bernanke, 557 F.3d
670, 677 (D.C. Cir. 2009)). If a prima facie case is
established, the burden shifts to the employer to produce a
“legitimate, nondiscriminatory reason” for its action. Wiley v.
Glassman, 511 F.3d 151, 155 (D.C. Cir. 2007) (internal
quotation marks omitted). Once the employer does so, the
plaintiff must respond with “sufficient evidence to create a
genuine dispute on the ultimate issue of retaliation” by
showing either directly that “a discriminatory reason more
likely motivated the employer,” or indirectly that “the
employer’s proffered explanation is unworthy of credence.”
Solomon, 763 F.3d at 14 (internal quotation marks and
brackets omitted).
Doak contends that the Coast Guard terminated her in
retaliation for her accommodation requests. The Coast Guard
21
responds that it had a legitimate, non-discriminatory reason
for terminating Doak: her inability to maintain a regular
schedule and presence in the workplace, and her frequent and
unpredictable absences without leave. Those are the reasons
that Souther, Doak’s supervisor, gave when he made the
ultimate decision to terminate her employment. Because the
Coast Guard came forward with a “legitimate, non-retaliatory
justification for [its] actions,” Solomon, 763 F.3d at 14, the
only question is whether Doak’s evidence “creates a material
dispute on the ultimate issue of retaliation,” Jones, 557 F.3d
at 678.
Doak’s evidence fails to do so. She points to a “causal
temporal link” between her April and July 2010
accommodation requests and the Coast Guard’s proposed
termination of her employment in August 2010, sixteen weeks
after her first accommodation request and three weeks after
her last one. Appellant’s Br. 24. But to survive summary
judgment, Doak had to offer “positive evidence beyond mere
proximity.” Solomon, 763 F.3d at 16 (internal quotation
marks omitted). To fill that evidentiary gap, Doak argues that
her attendance was improving in the summer of 2010,
suggesting that the Coast Guard used her absences as a pretext
for unlawful retaliation. That claim just does not hold up to
summary judgment standards.
To begin with, Doak points to her statement in a
declaration that, “by mid-July [2010,] I was able to arrive by
9:30 a.m. on most days if I did not have a migraine or body
pain.” J.A. 251 (emphases added). That statement—which
suggests that Doak still arrived late when she suffered from
migraines or body pain and even sometimes when she did
not—cuts against her as much as for her.
22
In her declaration, Doak also states that her union
representative “did an analysis indicating that my attendance
was improving and that as of July 31, 2010” she was “at 85%
attendance.” J.A. 252. But Doak’s attendance exceeded
eighty percent only for the two pay periods preceding July
31st; it was far worse before those periods. More importantly,
her attendance declined right afterward, in the weeks
preceding her termination. As Souther explained in his
termination decision, “[a]lthough your unscheduled absences
decreased briefly after you received the Notice of Proposed
Removal, your unscheduled absences have continued and
increased significantly since 10 September 2010.” J.A. 212.
Doak offered nothing to dispute that.
More to the point, “improving” is not the same thing as
“improved.” Doak’s fleeting increase in attendance still fell
short of what her job requires, and it made no meaningful
impact on the overall percentage of scheduled work hours that
she missed. Doak has thus failed to cast any reasonable doubt
on, or create any disputed question of material fact
concerning, the Coast Guard’s asserted non-retaliatory reason
for terminating her. For that reason, the district court properly
granted summary judgment to the Secretary on the retaliation
claim.
III
Conclusion
Doak’s failure to timely contact or cooperate with an
EEO Counselor does not deprive the court of jurisdiction to
decide this case. We affirm the district court’s grant of
summary judgment to the Secretary on Doak’s
accommodation and retaliation claims.
So ordered.