Linda Solomon v. Thomas Vilsack , 763 F.3d 1 ( 2014 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 17, 2014 Decided August 15, 2014
No. 12-5123
LINDA SOLOMON,
APPELLANT
v.
THOMAS J. VILSACK, SECRETARY OF AGRICULTURE,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:07-cv-01590)
John F. Karl Jr. argued the cause and filed the briefs for
appellant.
Denise M. Clark and Les Alderman were on the brief for
amicus curiae Metropolitan Washington Employment
Lawyers Association in support of appellant. Alan R. Kabat
entered an appearance.
Brian P. Hudak, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Ronald C.
Machen Jr., U.S. Attorney, and R. Craig Lawrence, Assistant
U.S. Attorney.
2
Before: HENDERSON and MILLETT, Circuit Judges, and
GINSBURG, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge MILLETT.
MILLETT, Circuit Judge: Invoking the protections of the
Rehabilitation Act of 1973, 29 U.S.C. §§ 701 et seq., Linda
Solomon sought substantial flexibility in her working hours—
what is known as a “maxiflex” schedule—as an
accommodation for her disability. She alleges that she
informally enjoyed a similar accommodation for multiple
months, and that her employer allowed at least one other
employee in a comparable position in her office to work a
similarly flexible schedule. The Department of Agriculture
nevertheless denied her request for such a flexible work
schedule, and Solomon filed suit. The district court granted
summary judgment to the Department on the ground that, as a
matter of law, a maxiflex work schedule is an unreasonable
accommodation request. The district court also rejected her
retaliation claims on the related ground that, having sought
what the court deemed to be an unreasonable accommodation,
there could not have been retaliation as a matter of law.
We reverse in part because the essential legal predicate of
the district court’s decision was wrong. Nothing in the
Rehabilitation Act establishes, as a matter of law, that a
maxiflex work schedule is unreasonable. We leave open for
resolution on remand the factual questions of whether or not a
maxiflex schedule or other accommodations would have been
reasonable in this case and whether or not Department
employees retaliated against Solomon by denying her the
ability to work late as she had previously been permitted to
do. We affirm the balance of the district court’s judgment.
3
I. BACKGROUND
A. Statutory Framework
The Rehabilitation Act “was the first major federal
statute designed to provide assistance to the whole population
of” individuals with disabilities. Shirey v. Devine, 670 F.2d
1188, 1193 (D.C. Cir. 1982). The Act’s purpose is to ensure
that the federal government is “a model employer of
individuals with disabilities,” 29 C.F.R. § 1614.203(a), and is
proactive in their “hiring, placement, and advancement,” 29
U.S.C. § 791(b).
The Act, as amended, directs courts to employ the
standards of the Americans with Disabilities Act of 1990, 42
U.S.C. §§ 12101 et seq., in evaluating suits that, as relevant
here, allege that an employer unlawfully denied an
accommodation. See 29 U.S.C. § 791(g); 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). Specifically, the Rehabilitation Act
requires federal employers to make “reasonable
accommodations to the known physical or mental limitations
of an otherwise qualified individual with a disability.” 42
U.S.C. § 12112(b)(5)(A). An “individual with a disability”
includes a person with “a physical or mental impairment that
substantially limits one or more major life activities.” Id.
§ 12102(1)(A). To be a “qualified individual” entitled to the
Rehabilitation Act’s protections, an individual must be able to
perform, “with or without reasonable accommodation,” “the
essential functions of the employment position that such
individual holds or desires.” Id. § 12111(8).
The Rehabilitation Act also forbids retaliation against or
coercion of individuals who seek to vindicate the rights
4
guaranteed by the statute. The Act does so by making it
unlawful both (i) to retaliate “against any individual because
such individual has opposed any act or practice made
unlawful by this chapter or because such individual made a
charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this chapter,” 42
U.S.C. § 12203(a), and (ii) 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, or on
account of his or her having aided or encouraged any other
individual in the exercise or enjoyment of, any right granted
or protected by this chapter,” id. § 12203(b).
B. Factual Background
1. Starting in 1997, Linda Solomon worked as a budget
analyst in the Administrative Programs Branch of the Budget
Division within the Department of Agriculture’s Rural
Development Mission Area. Solomon v. Vilsack, 845 F.
Supp. 2d 61, 64 (D.D.C. 2012). She received a superior
performance evaluation in 2003 from her direct supervisor,
Sylvia Booth, the Chief of the Administrative Programs
Branch, and Booth’s supervisor Deborah Lawrence, the
Director of the Budget Division. Solomon carried a higher
workload than the other budget analysts in the office and rose
to the level of senior budget analyst. 1
Solomon has a long history of depression dating back to
the 1980s. Her illness intensified in late 2003 and early 2004
1
While the ultimate determination of what happened in this case is
for the trier of fact, in reviewing the grant of summary judgment to
the Secretary, we view the evidence in the light most favorable to
Solomon, drawing all reasonable inferences in her favor. See, e.g.,
Pardo-Kronemann v. Donovan, 601 F.3d 599, 604 (D.C. Cir.
2010).
5
due to numerous personal hardships, and she began receiving
treatment from a psychiatrist, Dr. Dennis Cozzens. Solomon,
845 F. Supp. 2d at 64. Her deteriorating condition made it
difficult for her to maintain her normal work schedule. On
some days, Solomon woke up too sick to work until the
afternoon, when her condition improved; on other days, she
was able to work in the morning but not in the afternoon. As
a result, Solomon was out of the office a significant amount of
time in the first ten weeks of 2004. Id.
Despite her intensifying depression, Solomon continued
to perform all of her job duties and to complete all of her
work. She did so by using leave for hours missed during her
normal duty schedule, and then working additional
unscheduled hours without pay. For example, she would start
work at 5:00 a.m. one day, or work until 10:00 or 11:00 p.m.
the next. Solomon, 845 F. Supp. 2d at 68. When needed, she
would take work home to meet a deadline. Because of her
efforts, Solomon never missed a single work deadline
throughout the acute phase of her illness. Nor were there any
complaints about her work performance.
Booth knew that Solomon was working this modified
schedule, and she signed Solomon’s bi-weekly time cards that
reported the missed hours as charged leave. According to
Solomon, her division also allowed a fellow budget analyst to
work outside her normal duty hours. Solomon observed her
fellow analyst arriving late and staying until 8:00 p.m.,
sometimes working late right alongside Solomon. Solomon,
845 F. Supp. 2d at 68.
In February 2004, Solomon obtained permission from
Booth to hang a simple privacy curtain at the entry of her
cubicle. She claimed that it was needed to minimize
distraction and to aid her concentration. For that same reason,
6
Solomon also asked that her cubicle be relocated to a quieter
area, but the Department never acted on that request.
Throughout that same time, Solomon was also pursuing
the informal grievance process with an Equal Employment
Opportunity (EEO) counselor to resolve what she viewed as
discriminatory action by Booth and Lawrence in charging her
with being absent without leave for 1.5 hours one day in
December 2003.
2. On March 2, 2004, Solomon emailed Booth,
apologizing for her erratic leave and explaining that she was
under a doctor’s care for a relapse of her chronic depression.
Booth replied that, if Solomon’s condition required “special
accommodations” and could impact her “normal duty
schedule,” she should provide “medical documentation.” On
March 29th, Solomon responded with a letter from Dr.
Cozzens explaining that Solomon suffered from “chronic
depression, anxiety and insomnia” and requesting “a flexible
work schedule * * * to assist her with her medical treatment.”
Solomon understood the request for a “flexible work
schedule” to mean the ability to come to work late or to work
late hours if her depression so required, much like she had
been doing for months.
Meanwhile, unable to come to a resolution with Booth
and Lawrence with respect to her informal EEO grievance,
Solomon received notice of her right to file a formal
complaint on February 10, 2004. Solomon, however, made
one last attempt to address the issue informally by emailing
Lawrence’s superior on March 18, 2004. That effort failed
four days later, when Arleen Christian, the Chief of the
Human Resources Personnel Branch, instructed Lawrence’s
superior that the matter would have to be resolved through the
formal EEO process.
7
Just a few weeks later, on April 6th, Deborah Lawrence,
in the company of William French, who was Booth’s
successor as Chief of the Administrative Programs Branch,
rejected Solomon’s request for a flexible schedule as an
accommodation for her disability. Lawrence’s memorandum
asked that Solomon submit further “medical documentation”
by April 16th to demonstrate “the existence of [her] medical
condition and the necessity for the [requested] changes in
duty location and hours of duty.” Solomon was unable to get
Dr. Cozzens to submit further medical documentation in time
to meet that ten-day deadline, but she alleges that
management, including Lawrence, already was informed
about her disabling condition—a fact that the Secretary does
not dispute on appeal. The memorandum separately ordered
Solomon to remove the privacy curtain from her cubicle on
the ground that it “could cause harm to yourself and others.”
3. On April 12th, Solomon filed a formal complaint of
discrimination with the Department of Agriculture’s Office of
Civil Rights referencing the December 2003 absent-without-
leave incident. She listed as the bases for discrimination
“race, reprisal, color, age, [and] disability.”
Eleven days later, on April 23rd, Solomon, though
feeling unwell, went to work because she needed to finish a
project. She arrived late. As before, she planned to stay late,
without any additional compensation, to ensure the project’s
timely completion. French was off that day, so Solomon
informed Norma Torres, her temporary direct supervisor,
about her plans. Torres and her supervisor sought instruction
from Arleen Christian, the Human Resources Chief. At
Christian’s direction, Solomon’s supervisors refused to allow
her to work past 6:00 p.m.
8
Angered and frustrated by that abrupt refusal to permit
her to complete her work as she had previously been allowed,
Solomon went home. Solomon, 845 F. Supp. 2d at 69. Too
ill to work, Solomon wrote French on April 27th to inquire
why her temporary supervisors had barred her from working
late, and noting that she had been allowed to do so for months
by her previous supervisor. French responded a week later,
warning Solomon that she would be considered “absent
without leave” until she provided medical documentation of
her incapacitation. French also forbade Solomon to work past
6:00 p.m. without his approval. Solomon continued to seek
resolution of these issues with French. (Lawrence was out of
the office on April 23rd through at least May 17th.) But
French, at the instruction of Christian, simply repeated that
Solomon would remain absent without leave until she
provided the requested documentation. According to Dr.
Cozzens, “to a reasonable degree of medical certainty,” those
actions “substantially worsened [Solomon’s] condition.”
For the next month, Dr. Cozzens corresponded with
Solomon’s supervisors. On May 10th, he updated them on
Solomon’s medical condition, explaining that her severe
depression “has prevented her from attending work since her
last appointment on 4/26/04,” and that her prognosis was
“guarded.” On June 2nd, he advised them that Solomon
remained unable to work due to continued psychiatric
symptoms. Once Solomon’s condition improved, Dr.
Cozzens explained, she could “return to work, initially on a
part-time basis” as early as mid-July, if afforded appropriate
accommodations.
Throughout that same time, Solomon herself continued
communicating with her supervisors. On May 26th, she
emailed French, asking for permission “to telecommute on a
part-time schedule.” When French forwarded Solomon’s
9
request to Lawrence, Christian, and other management
personnel in human resources, Christian recommended
against it, and French denied the accommodation. Solomon
also repeatedly asked that she be advanced paid sick leave.
While her supervisors denied that request, they did allow her
to take substantial amounts of leave without pay and to
participate in the Department’s leave donor program.
Solomon, 845 F. Supp. 2d at 69–70.
Solomon subsequently applied for permanent disability
retirement. Solomon, 845 F. Supp. 2d at 70. In her view, that
was the only option left to her given the Department’s
continued refusal to provide any of her requested
accommodations. Her retirement took effect in January 2005.
C. Procedural History
After exhausting her administrative remedies, Solomon
filed suit against the Secretary of Agriculture, in his official
capacity, in the United States District Court for the District of
Columbia, alleging violations of the Rehabilitation Act, 29
U.S.C. §§ 701 et seq., the Age Discrimination in Employment
Act of 1967, 29 U.S.C. §§ 621 et seq., and Title VII of the
Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. She
alleged, in particular, that the Secretary’s refusal to provide
reasonable accommodations for her disability violated the
Rehabilitation Act. See 29 U.S.C. § 791(g); 42 U.S.C.
§ 12112(a) & (b)(5). She also alleged that her supervisors had
unlawfully retaliated against her for engaging in activities
protected by the Rehabilitation Act, Title VII, and the Age
Discrimination in Employment Act. 2
2
See 42 U.S.C. § 12203(a) (as extended to the Rehabilitation Act,
29 U.S.C. § 791(g)); 42 U.S.C. § 2000e-16(c); 29 U.S.C. § 633a(c);
10
The district court initially granted summary judgment for
the Secretary on the ground that Solomon’s receipt of
disability retirement benefits was predicated on her showing
that she could not perform the duties of her position even if
reasonably accommodated, and thus it precluded her
Rehabilitation Act claims as a matter of law. Solomon v.
Vilsack, 656 F. Supp. 2d 55, 57 (D.D.C. 2009). This court
reversed, explaining that, because Solomon’s retirement
application never stated that she would have been unable to
work if she had been afforded the accommodations she
sought, a jury could find that Solomon’s application was
consistent with her claim that “she could have worked in the
spring and summer of 2004 with reasonable accommodation.”
Solomon v. Vilsack, 628 F.3d 555, 565–567 (D.C. Cir. 2010).
On remand, the district court granted the Secretary’s
renewed motion for summary judgment. Solomon, 845 F.
Supp. 2d at 77. The district court ruled that the flexible work
schedule that Solomon principally requested was
unreasonable as a matter of law. Id. at 71–73. The court then
held that Solomon was not a “qualified individual” with a
disability because she needed such an unreasonable
accommodation to perform her job. Id.
The district court also denied Solomon’s Title VII
retaliation claim as legally precluded by the unreasonableness
of the requested accommodation. The court further ruled that
Solomon failed to demonstrate a causal connection between
her initiation in December 2003 of the EEO grievance process
and the later denials of her accommodation requests, and that
Solomon could not base a retaliation claim on a mere showing
that a requested accommodation was denied. Solomon, 845 F.
Supp. 2d at 75–77.
see also Gomez-Perez v. Potter, 553 U.S. 474, 477 (2008);
Montgomery v. Chao, 546 F.3d 703, 706 (D.C. Cir. 2008).
11
Solomon timely appealed the district court’s judgment.
II. STANDARD OF REVIEW
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.” Pardo-Kronemann v. Donovan, 601 F.3d 599, 604
(D.C. Cir. 2010) (internal quotation marks omitted). Our task
is not to “‘determine the truth of the matter,’ but to “decide
only ‘whether there is a genuine issue for trial.’” Id. (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)).
We likewise review de novo the district court’s conclusion
that a requested accommodation is unreasonable as a matter
of law. See United States v. Berry, 618 F.3d 13, 16 (D.C. Cir.
2010) (questions of law reviewed de novo).
III. SOLOMON’S ACCOMMODATION CLAIM
To avert summary judgment, Solomon 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, see Crandall v. Paralyzed Veterans of America,
146 F.3d 894, 896–897 (D.C. Cir. 1998); (iii) she was able to
perform the essential functions of her job with or without
reasonable accommodation, see 42 U.S.C. § 12112(b)(5)(A);
and (iv) her employer denied her request for a reasonable
accommodation of that disability. See Stewart v. St.
Elizabeths Hospital, 589 F.3d 1305, 1308 (D.C. Cir. 2010).
In this case, the Secretary acknowledges that the
Department of Agriculture was on notice of both Solomon’s
medical condition and her request for a flexible work
schedule. Secretary Br. 15–17. He also does not dispute that,
12
on the current record, a reasonable jury could find that
Solomon’s chronic depression, with the severe limitations it
inflicted on her ability to work and to perform the routine
activities of daily living, constitutes a “disability” within the
meaning of the Rehabilitation Act. See Secretary Br. 13
(describing how Solomon’s depression rendered it difficult or
impossible for her to work “beginning in Spring 2004”).
Most importantly, the Secretary does not deny that, if a
maxiflex schedule were a reasonable accommodation for
Solomon’s work as a budget analyst, a reasonable jury could
conclude that Solomon could otherwise have performed all
the essential functions of her job when she sought that
accommodation in March 2004.
Accordingly, the question before this court at this
procedural juncture is whether, on this record, a jury could
reasonably find that the maxiflex schedule that Solomon
requested could be a “reasonable” accommodation, within the
meaning of the Rehabilitation Act, for her position as a
budget analyst. We hold that a jury could so find and that the
district court’s conclusion that maxiflex is unreasonable as a
matter of law was wrong. 3
A. Flexible Work Hours Can Be A Reasonable
Accommodation
Determining whether a particular type of accommodation
is reasonable is commonly a contextual and fact-specific
inquiry. See Taylor v. Rice, 451 F.3d 898, 908 (D.C. Cir.
2006) (“An accommodation may be ‘reasonable on its face’
3
The Secretary argues that no reasonable jury could find that the
Department denied Solomon’s request for a flexible schedule.
Secretary Br. 44–45. Because the Secretary did not make that
argument before the district court, it is forfeited. See Flynn v.
Commissioner, 269 F.3d 1064, 1068–1069 (D.C. Cir. 2001).
13
* * * or it may be reasonable as applied, i.e., ‘on the
particular facts’ of the case”) (quoting U.S. Airways, Inc. v.
Barnett, 535 U.S. 391, 401, 405 (2002)) (emphasis added).
That is because the contours and demands of an employment
position and the capacities of a workplace can vary materially
from employer to employer. See McMillan v. City of New
York, 711 F.3d 120, 126 (2d Cir. 2013) (rather than deciding
cases “based on ‘unthinking reliance on intuition about the
methods by which jobs are to be performed,’ a court must
conduct ‘a fact-specific inquiry into both the employer’s
description of a job and how the job is actually performed in
practice’”) (citation omitted). Technological advances and
the evolving nature of the workplace, moreover, have
contributed to the facilitative options available to employers
(although their reasonableness in any given case still must be
proven). See EEOC v. Ford Motor Co., 752 F.3d 634, 641
(6th Cir. 2014) (because of “the advance of technology in the
employment context,” “attendance at the workplace can no
longer be assumed to mean attendance at the employer’s
physical location”). For those reasons, it is rare that any
particular type of accommodation will be categorically
unreasonable as a matter of law. This case is no exception.
Solomon requested a maxiflex schedule that would afford
her the ability to come to work late on certain days or leave
early on other days, as her condition required, as long as all
her work was completed properly and in a timely and secure
manner. See generally U.S. OFFICE OF PERSONNEL
MANAGEMENT, HANDBOOK ON ALTERNATIVE WORK
SCHEDULES, available at http://www.opm.gov/policy-data-
oversight/pay-leave/reference-materials/handbooks/alternative
-work-schedules/ (“maxiflex schedule” is one “that contains
core hours on fewer than 10 workdays in the biweekly pay
period and in which a full-time employee has a basic work
requirement of 80 hours for the biweekly pay period, but in
14
which an employee may vary the number of hours worked on
a given workday or the number of hours each week within the
limits established for the organization”).
The Secretary argues, and the district court agreed,
Solomon, 845 F. Supp. 2d at 72, that the “ability to work a
regular and predictable schedule” is, “as a matter of law, an
essential element of any job,” Secretary Br. 38–39. That is
incorrect. While the appropriateness of flexible working
hours as an accommodation in any given case will have to be
established, nothing in the Rehabilitation Act takes such a
schedule off the table as a matter of law. Quite the opposite,
the Rehabilitation Act, through its incorporation of the
Americans with Disabilities Act’s standards, see 29 U.S.C.
§ 791(g), is explicit that a “reasonable accommodation” may
include “job restructuring” and “part-time or modified work
schedules.” 42 U.S.C. § 12111(9)(B); see also 5 C.F.R.
§ 610.111(d) (Office of Personnel Management regulations
permit agencies to establish flexible or compressed work
schedules); U.S. OFFICE OF PERSONNEL MANAGEMENT,
NEGOTIATING FLEXIBLE AND COMPRESSED WORK SCHEDULES
(July 1995) (federal employment regulations do not prescribe
any “minimum or maximum amount of flexibility” with
respect to work schedules established by federal employers).
Our sister courts, too, have recognized that “[p]hysical
presence at or by a specific time is not, as a matter of law, an
essential function of all employment.” McMillan, 711 F.3d at
126 (emphasis added). Instead, “penetrating factual analysis”
is required to determine whether a rigid on-site schedule is an
essential function of the job in question. Id.; see also Ward v.
Massachusetts Health Research Inst., Inc., 209 F.3d 29, 34–
35 (1st Cir. 2000) (employer must specifically prove that “a
regular and reliable schedule” is an essential element of a
position, which “requires a fact-intensive inquiry”).
15
The Secretary, moreover, need only look around the
neighborhood to witness both the availability and viability of
maxiflex work schedules specifically within the federal
government. The Office of Personnel Management, which is
responsible for “executing, administering, and enforcing”
rules and regulations governing federal employment, 5 U.S.C.
§ 1103, has identified maxiflex as a potential option for
qualifying federal employment positions. See HANDBOOK ON
ALTERNATIVE WORK SCHEDULES, supra. In addition, the
Chief of Human Resources for Solomon’s division admitted
that “some agencies” provide maxiflex as a potential
workplace option.
Both the district court and the Secretary invoked Carr v.
Reno, 23 F.3d 525 (D.C. Cir. 1994), as establishing that a
regular and predictable schedule is an essential function of all
jobs. That greatly overreads Carr. In that case, the evidence
showed that Carr’s job required her to pick up and code
papers for input into a computerized database at precisely
4:00 p.m. each day. Id. at 527. Her disability caused her to
miss work on short notice, often when commuting in the
morning, and so incapacitated her that she was unable to
perform even the basic task of calling in sick. Id. Carr’s
frequent, unpredictable, and abrupt absences caused the lone
remaining clerk undue hardship because that clerk, time and
again and without warning, had to do twice the work in the
same amount of time. Id. In addition, Carr conceded that her
job involved “tight 4:00 p.m. deadlines.” Id. at 530. This
court stressed that those unique and undisputed facts made
Carr the “unusual Rehabilitation Act case that * * * can be
resolved against the plaintiff without extensive fact finding.”
Id. at 531 (emphasis added).
Our categorization of Carr as “unusual” means it could
not have been the genesis of a sweeping and categorical legal
16
rule against substantial flexibility in work hours. Subsequent
precedent proves the point. In Breen v. Department of
Transportation, 282 F.3d 839 (D.C. Cir. 2002), we held that
Carr had no application to a case where (as here) the plaintiff
sought a modified work schedule and did not “concede[] that
there was a critical element of her position—such as a daily
deadline—that rendered the accommodation she proposed
ineffectual,” id. at 843. Because Breen “offered evidence
disputing her employer’s claim that the job restructuring she
proposed was incompatible with the essential functions of her
position,” we reversed the grant of summary judgment. Id.
In the same vein is Woodruff v. Peters, 482 F.3d 521
(D.C. Cir. 2007). Woodruff sought accommodations that, in
the past, the agency had de facto afforded him: the ability to
set his own schedule and to take breaks in the middle of the
day. Id. at 528. Because Woodruff came forward with
evidence that his job did not require him “to be physically
present in the office,” and that he had successfully performed
the “essential functions” of his job when he was previously
afforded those accommodations, we held that “his case is at
least strong enough to escape summary judgment.” Id.
Accordingly, the district court’s holding that an “open-
ended” or maxiflex schedule is “unreasonable as a matter of
law,” Solomon, 845 F. Supp. 2d at 72, is incorrect. Whether a
maxiflex or other flexible workplace schedule is a reasonable
accommodation for a given employee in a given position is a
case-by-case factual inquiry, not a foreordained legal
conclusion.
B. Solomon’s Flexible Hours Accommodation Claim
Survives Summary Judgment
Like the plaintiffs in Breen and Woodruff, Solomon
discharged her duty of coming forward with evidence from
17
which a reasonable jury could find that a strict work-hours
regimen was not an essential function of her job. While the
Secretary argues (Br. 43) that Solomon’s job involves “tight,
unpredictable, and firm deadlines,” Solomon answered with
evidence that short deadlines are infrequent and, when they
arise, can be met with a maxiflex schedule. Indeed, Solomon
showed—and it was not disputed by the Secretary—that she
met every single work deadline through April 23, 2004, by
working such a flexible schedule. Solomon, 845 F. Supp. 2d
at 68. Solomon reinforced that record with evidence that the
Department had permitted a fellow budget analyst to work
similarly flexible hours. Id.; see also Langon v. Department
of Health and Human Services, 959 F.2d 1053, 1060–1061
(D.C. Cir. 1992) (evidence undermined employer’s contention
that the job had “short deadlines” and required “frequent face-
to-face contacts,” creating “a genuine issue about whether,
with the accommodation,” “Ms. Langon could perform the
essential functions of her position”).
The district court acknowledged that Solomon never
missed “any actual deadline” during the period at issue.
Solomon, 845 F. Supp. 2d at 71–72. But the court dismissed
that evidence, surmising that “it may have merely been good
luck that [Solomon] was able to meet [her] deadlines with
such extensive absences.” Id. at 72. Summary judgment
cannot rest on such speculation about evidence. “By
weighing the evidence and reaching factual inferences” in the
Secretary’s favor, the district court “failed to adhere to the
axiom that in ruling on a motion for summary judgment,
‘[t]he evidence of the nonmovant is to be believed, and all
justifiable inferences are to be drawn in h[er] favor.’” Tolan
v. Cotton, 134 S. Ct. 1861, 1863, 1868 (2014) (per curiam)
(quoting Anderson, 477 U.S. at 255) (first alteration in
original).
18
In sum, Solomon discharged her summary-judgment duty
of coming forward with sufficient evidence for a reasonable
jury to find in her favor on all four elements of her
accommodation claim, and for that reason we reverse the
district court’s grant of summary judgment on that claim. We
need not decide whether Solomon’s additional
accommodation requests—for a privacy curtain, relocation of
her cubicle, advance sick leave, and a part-time,
telecommuting schedule—independently created jury
questions. Those additional requests may have been intended
as alternative or temporary accommodations, or as
complements to the flexible schedule. We leave for the trier
of fact the question whether Solomon’s requests, individually
or collectively, would have enabled Solomon to perform the
essential functions of her position without undue hardship to
the Department. See Breen, 282 F.3d at 843 n.6. 4
IV. SOLOMON’S RETALIATION CLAIMS
Solomon presses her retaliation claims under two
theories: First, Solomon contends that her supervisors
retaliated against her for pursuing the EEO grievance process.
Second, she maintains that the Department, in violation of the
Rehabilitation Act, retaliated against her for making
accommodation requests. Solomon argues a jury could find
that her supervisors retaliated against her for those protected
activities by withdrawing her informal accommodations: that
4
Solomon argues in the alternative that, even if none of the
accommodations she requested was reasonable, they were sufficient
collectively to trigger the Department’s obligation to engage in the
interactive process in an effort to find a reasonable accommodation
for her. Solomon Br. 45–52. Because we conclude that a
reasonable jury could find on this record that the Department
denied Solomon a requested reasonable accommodation, we decline
to reach that argument.
19
is, by banning her from working after 6:00 p.m., and by
ordering her to remove her privacy curtain. She also argues
that they retaliated by denying, after April 23rd, the
accommodation requests she made for relocation of her
cubicle, advance sick leave, and part-time telecommuting.
Solomon Br. 53.
Because Solomon has come forward with sufficient
evidence from which a jury could reasonably infer that her
supervisors banned her from working after 6:00 p.m. in
retaliation for requesting accommodations, we reverse the
district court’s entry of summary judgment on that
Rehabilitation Act retaliation claim. We affirm the grant of
summary judgment with respect to her other retaliation
claims. 5
A. Preservation of the Retaliation Claims
The Secretary opens with a threshold challenge that
Solomon never properly pleaded any distinct retaliation claim
under the Rehabilitation Act, and that Solomon never alleged
a retaliatory withdrawal (under any statute) of informal
accommodations that the agency previously afforded her.
Secretary Br. 52, 54. Those arguments come too late.
Solomon argued her Rehabilitation Act retaliation claim
in her opposition to the Secretary’s first motion for summary
judgment. See Pl.’s Opp’n to Def.’s Mot. For Summ. J. at 2,
ECF No. 29, No. 07-01590-JDB (D.D.C. May 8, 2009). The
Secretary made no mention of a failure to plead then. See
generally Reply in Supp. of Def.’s Mot. For Summ. J., ECF
No. 34, No. 07-01590-JDB (D.D.C. June 8, 2009).
5
Solomon does not mention her retaliation claim under the Age
Discrimination in Employment Act, so it is forfeited. See
Schneider v. Kissinger, 412 F.3d 190, 200 n.1 (D.C. Cir. 2005).
20
Furthermore, in her previous appeal, Solomon expressly
argued that her requests for accommodation constituted
protected activity under the Rehabilitation Act, and that the
Department of Agriculture denied those requests for
retaliatory reasons. Solomon Br. 57–60, No. 09-5319 (D.C.
Cir. June 9, 2010). Solomon also argued that the Department
withdrew her informal accommodations in retaliation for her
protected activity. Id. at 56–57. The Secretary again failed to
argue that Solomon had in any way failed to procedurally
preserve those claims, see Secretary Br. 56–60, No. 09-5319
(D.C. Cir. Aug. 9, 2010), resulting in our repeated references
to Solomon’s “distinct” retaliation claims under Title VII and
the Rehabilitation Act. Solomon, 628 F.3d at 559–561, 567.
To the extent the Secretary raised any forfeiture argument
below, he did so for the first time in his reply brief during the
second round of summary-judgment briefing—and even then,
only with respect to “Solomon’s April 2004 Accommodations
Claim[.]” Reply in Supp. of Def.’s Renewed Mot. For Summ.
J. at 2–3, ECF No. 77, No. 07-01590-JDB (D.D.C. July 21,
2011).
By failing to argue forfeiture or a failure to properly
plead the claims before the district court, the Secretary has—
in a word—forfeited his forfeiture argument here. See
Lennon v. United States Theatre Corp., 920 F.2d 996, 1000
(D.C. Cir. 1990) (party’s failure to challenge the absence of a
necessary pleading under Rule 8 of the Federal Rules of Civil
Procedure “in all likelihood waived any waiver defense”); see
also Empagran S.A. v. F. Hoffman-LaRoche, Ltd., 388 F.3d
337, 342–343 (D.C. Cir. 2004) (per curiam) (where defendant
“fail[ed] to challenge the complaint under Rule 8, even after”
claims were repeatedly asserted, the defendant had sufficient
“notice regarding the [claims],” and the complaint
accordingly “complied with the Federal Rules”).
21
B. Merits of the Retaliation Claims
Where, as here, a plaintiff offers only circumstantial
evidence of retaliation, her claim is governed by the burden-
shifting framework of McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802–808 (1973). See Jones v. Bernanke, 557
F.3d 670, 677 (D.C. Cir. 2009). Under that framework,
Solomon must “first establish a prima facie case of retaliation
by showing” 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.”
Id. Once a prima facie case is established, the burden of
production 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). If the employer does so,
the plaintiff must respond with sufficient evidence to “create[]
a genuine dispute on the ultimate issue of retaliation either
directly by [showing] that a discriminatory reason more likely
motivated the employer or indirectly by showing that the
employer’s proffered explanation is unworthy of credence.”
Pardo-Kronemann, 601 F.3d at 604 (internal quotation marks
omitted; second alteration in original).
The district court’s entry of summary judgment rested
principally on the erroneous premise that Solomon, “as a
matter of law,” “could not have been reasonably
accommodated” and, therefore, the denials of her requested
accommodations “cannot be ‘adverse[.]’” Solomon, 845 F.
Supp. 2d at 75. Because that ruling was based on the flawed
predicate holding that Solomon’s request for a maxiflex
schedule was legally foreclosed, that rationale fails here as
well.
In the alternative, the district court held that Solomon
failed to establish a prima facie causal connection between
22
her December 2003 meeting with an EEO counselor and the
denials in the Spring and Summer of 2004 of her various
accommodation requests. However, we need not decide
whether Solomon established a prima facie case of retaliation
because the Secretary came forward with a legitimate, non-
retaliatory justification for the Department’s actions. Once
the Secretary did that, the burden-shifting framework fell
away, and now the “only question is the ‘ultimate factual
issue in the case’”—retaliation “‘vel non.’” Jones, 557 F.3d
at 678 (quoting United States Postal Service Bd. of Governors
v. Aikens, 460 U.S. 711, 714–715 (1983)); see also Taylor v.
Solis, 571 F.3d 1313, 1320 n.* (D.C. Cir. 2009) (once the
employer asserts a legitimate, non-discriminatory reason, “the
court need not—and should not—decide whether the plaintiff
actually made out a prima facie case”) (internal quotation
marks and citation omitted).
With respect to that ultimate factual issue, Solomon
contends that a reasonable jury could infer retaliation from:
(i) the withdrawal on April 23rd of her permission to work
late, (ii) the withdrawal on April 6th of permission to use a
privacy curtain, and (iii) the denials of her requests for
accommodation. Solomon is correct with respect to her first
argument, but not the other two.
1. Revocation of Permission to Work Late
Solomon contends that her supervisors withdrew her de
facto flexible schedule, forbidding her to work late, in
retaliation either for her filing of a formal EEO complaint
eleven days earlier or for the accommodation requests she
made. The Secretary responds by stating that the decision not
to let her work late on April 23rd was made by temporary
supervisors who were unaware of any informal arrangements
Solomon might have had with her regular supervisors, did not
23
know about the formal complaint, and were advised by human
resources to have her follow standard policy and work normal
duty hours. While it would not be unreasonable for the trier
of fact to accept that explanation, the question at this juncture
is whether the record forecloses any other plausible
conclusion. It does not.
First, Solomon came forward with “evidence
discrediting” the Department’s proffered explanation for the
refusal to let her work late. See Jones, 557 F.3d at 680.
While the Secretary relied on the temporary status of the April
23rd decisionmakers and their alleged ignorance of
Solomon’s circumstances, Solomon showed—through
French’s deposition and emails among management
officials—that her permanent supervisor (French) ratified and
formalized the revocation of her permission to work late after
consulting with Human Resources Chief Arleen Christian.
Christian was a permanent employee long familiar with
Solomon’s situation, and French received an email from
Solomon discussing her prior arrangement several days before
he ratified the decision to revoke it. Thus, Solomon casts
doubt on the Secretary’s proffered justification, and “we do
not routinely require plaintiffs ‘to submit evidence over and
above rebutting the employer’s stated explanation in order to
avoid summary judgment.’” Hamilton v. Geithner, 666 F.3d
1344, 1351 (D.C. Cir. 2012) (quoting Aka v. Washington
Hospital Center, 156 F.3d 1284, 1290 (D.C. Cir. 1998) (en
banc)).
Second, Solomon’s evidence that another budget analyst
had been allowed to work hours outside of her normal duty
schedule and similar to those Solomon had been working
would allow a jury to find that the Secretary’s they-were-just-
following-policy justification was pretextual. Even the
district court thought it “odd that Solomon’s supervisors
24
voiced their objection not to her absence but to her presence,
especially if other employees were permitted to work late.”
Solomon, 845 F. Supp. 2d at 73. Such pretext evidence
“‘usually’ is itself sufficient to allow a reasonable jury to infer
retaliation.” Jones, 557 F.3d at 681 (quoting George v.
Leavitt, 407 F.3d 405, 413 (D.C. Cir. 2005)). Indeed, “a
plaintiff’s discrediting of an employer’s stated reason for its
employment decision is entitled to considerable weight.”
Aka, 156 F.3d at 1290; see Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 147 (2000) (“In appropriate
circumstances, the trier of fact can reasonably infer from the
falsity of the explanation that the employer is dissembling to
cover up a discriminatory purpose.”).
Accordingly, we hold that Solomon came forward with
sufficient evidence to preclude summary judgment on her
claim that the revocation of her permission to work late was
retaliatory. In so doing, we join our sister circuits in holding
that the act of requesting in good faith a reasonable
accommodation is a protected activity under 42 U.S.C.
§ 12203, which is incorporated into the Rehabilitation Act,
see 29 U.S.C. § 791(g). 6 Cf. Mayers v. Laborers’ Health &
6
See, e.g., A.C. ex rel. J.C. v. Shelby County Board of Educ., 711
F.3d 687, 698 (6th Cir. 2013); Cassimy v. Board of Educ., 461 F.3d
932, 938 (7th Cir. 2006); Coons v. Secretary of U.S. Dep’t of
Treasury, 383 F.3d 879, 887 (9th Cir. 2004); Heisler v.
Metropolitan Council, 339 F.3d 622, 632 (8th Cir. 2003);
Shellenberger v. Summit Bancorp, Inc., 318 F.3d 183, 191 (3d Cir.
2003); Wright v. CompUSA, Inc., 352 F.3d 472, 477 (1st Cir.
2003); Weixel v. Board of Educ., 287 F.3d 138, 149 (2d Cir. 2002);
Haulbrook v. Michelin N. America, 252 F.3d 696, 706 (4th Cir.
2001); Selenke v. Medical Imaging of Colorado, 248 F.3d 1249,
1265 (10th Cir. 2001); Standard v. A.B.E.L. Servs., Inc., 161 F.3d
1318, 1328 (11th Cir. 1998); see also EEOC v. Chevron Phillips
Chem. Co., 570 F.3d 606, 620 n.9 (5th Cir. 2009) (noting
25
Safety Fund, 478 F.3d 364, 369 (D.C. Cir. 2007) (assuming
that accommodation requests are a protected activity under
the Americans with Disabilities Act).
Solomon also presses as an additional theory of
retaliation the temporal proximity of her filing of a formal
EEO complaint on April 12th to the revocation eleven days
later of her ability to work late. But that complaint involved
the absent-without-leave incident with Lawrence, who was
out of the office on April 23rd and the ensuing weeks when
French ratified the decision to prohibit Solomon from
working late. Therefore, a reasonable jury could not find that
the April 12th EEO filing motivated Christian’s and French’s
decision to revoke Solomon’s permission to work late. For
that reason, Solomon’s surviving retaliation claim is that her
requests for accommodation motivated her supervisors to
revoke her permission to work late.
2. Removal of Privacy Curtain
Solomon’s claim that the April 6th order to remove her
privacy curtain was retaliatory does not survive summary
judgment. The Secretary came forward with a legitimate,
non-retaliatory reason for that action, pointing to Lawrence’s
expressed concern with keeping the entrances to cubicle work
spaces free from obstruction.
Solomon has no answer to that justification other than the
order’s temporal proximity to her informal attempt to resolve
uniformity among the circuits that have decided the issue); 9 LEX
K. LARSON, EMPLOYMENT DISCRIMINATION § 154.10, at p. 154-
105 & n.25 (2d ed. 2014) (“In addition to the activities specifically
protected by the statute, courts have found that requesting
reasonable accommodation is a protected activity.”).
26
her complaint with Lawrence’s superior. While Solomon
points out that her then-supervisor, Booth, had allowed her to
install the curtain, it was Lawrence, not Booth, who ordered
the curtain’s removal. Solomon neither contends nor
evidences that Lawrence knew Booth had authorized its
installation. Nor does Solomon point to any evidence
suggesting that Lawrence’s safety justification was pretextual,
such as evidence that other employees had similar
obstructions in the entrances to their cubicles.
Because Solomon lacks “positive evidence beyond mere
proximity,” she has failed to create a genuine issue of material
fact concerning whether the motive for the ordered removal
was safety or retaliation. Woodruff, 482 F.3d at 530.
3. Denials of Accommodation Requests
Solomon’s remaining retaliation claims cannot survive
summary judgment. For each allegedly retaliatory denial of
an accommodation request, the Secretary came forward with
evidence of a legitimate, non-retaliatory justification that
Solomon has left unanswered. Specifically, with respect to
Solomon’s request for advance sick leave, the Secretary
explained that her request did not comply with agency policy
because it failed to indicate when or whether she would be
able to return to work. Plus Solomon was provided with
unlimited leave without pay and participation in the leave
donor program instead.
Solomon also presses the requested relocation of her
cubicle. The Department of Agriculture never had a chance
to process that request, however, because Solomon made it
six weeks before she left work on April 23rd and never
returned.
27
Finally, Solomon points to her requests in late May to
telecommute or to work part-time. But for that period of
time, correspondence from Solomon herself and Dr. Cozzens
led Solomon’s supervisors to believe that her condition had
deteriorated to the point that she was medically unable to
work in any capacity. Even if the supervisors incorrectly
assessed Solomon’s condition, and the Department was thus
obligated to provide reasonable accommodation, Solomon
must still present evidence casting doubt on the sincerity of
the Department’s proffered non-retaliatory justification for its
action. “Once the employer has articulated a non-
discriminatory explanation for its action * * *, the issue is not
the correctness or desirability of the reasons offered but
whether the employer honestly believes in the reasons it
offers.” See Fischbach v. District of Columbia Dep’t of
Corrections, 86 F.3d 1180, 1183 (D.C. Cir. 1996) (citation
and internal punctuation omitted).
In response to those explanations, Solomon offers only
conclusory statements, Solomon Reply Br. 32, devoid of
citation to the record, and from which no reasonable jury
could make the desired inference that the Secretary’s
“justifications were mere pretext,” Smith v. District of
Columbia, 430 F.3d 450, 455 (D.C. Cir. 2005), or that a
retaliatory reason “more likely motivated” his actions, Pardo-
Kronemann, 601 F.3d at 604 (internal quotation marks
omitted).
*****
For the foregoing reasons, we (i) reverse the district
court’s entry of summary judgment on Solomon’s
accommodation claim, (ii) reverse the entry of summary
judgment on her claim that revoking her permission to work
late was in retaliation for requesting accommodations, and
28
(iii) remand those claims for further proceedings. We affirm
the balance of the district court’s grant of summary judgment.
So ordered.