Solomon v. Johanns

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
LINDA SOLOMON,
Plaintiff,
v. Civil Action No. 07-1590 (JDB)
THOMAS J. VILSACK, U.S. Secretary of
Agriculture,’
Defendant.
MEMORANDUM OPINION
Plaintiff Linda Solomon, a former employee of the United States Department of
Agriculture ("USDA"), brings this employment discrimination and retaliation action against
defendant Thomas J. Vilsack in his official capacity as the Secretary of Agriculture ("the
Secretary"). Solomon seeks relief under three statutes: the Rehabilitation Act of 1973, 29
U.S.C. §§ 791, L§g;_.; Title VII ofthe Civil Rights Act of l964, 42 U.S.C. §§ 2000e, et_sgl_;; and
the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621, et;q; Now before
the Court is the Secretary's motion for summary judgment. The primary issue presented is
whether Solomon's application for and receipt of federal employees' retirement disability
benefits precludes her Rehabilitation Act and Title VII claims. The Court concludes that those
claims are precluded. Hence, upon careful consideration of the motion and the parties'
memoranda, the applicable law, and the entire record, the Secretary's motion will be granted.
‘ Former U.S. Secretary of Agriculture Mike Johanns was named as the original
defendant in this case. Pursuant to Federal Rule of Civil Procedure 25(d), the Court automatically
substitutes his successor, Secretary Thomas J. Vilsack, as the new defendant.
BACKGROUND
Solomon began working as a budget analyst at the USDA in l997. § Def.'s SOF at 11
63 & Pl.'s SOF at 3.2 She has a long history of depression and has been treated by numerous
mental health professionals, including Dr . g Def.'s SOF at 111
1-9 & Pl.'s SOF at l. Solomon's depression intensified in late 2003 because of various personal
hardships she experienced at that time. § Def.'s SOF at 1111 10-32 & Pl.'s SOF at l-2. Her
mental health in late 2003 into 2004 "was often unpredictable" and she had "intermittent and
sporadic" problems sleeping, concentrating, and focusing. Pl.'s SOF at 2. She began suffering
from "panic disorder" and "agoraphobia,'“ and Dr.-believed that Solomon had entered a
downward cycle by May 2004. S_eg Def.'s SOF at 111 39-41 & Pl.'s SOF at 3.
w
Def.'s SOF at 1[1] 42-46 & Pl.'s SOF at 3. According to Dr. i, Solomon's condition
remained poor in June 2004, and Solomon describes herself as having been in "crisis" in July
2004. § Def.'s SOF at 111 47, 53 & Pl.'s SOF at 3. Her condition did not improve in August
2004. _S_e§ Def.'s SOF at ‘[Hl 55-58 & Pl.'s SOF at 3.
As her depression worsened, Solomon began missing time at work. In the first ten weeks
of 2004, she used more than l 10 hours of leave, including 50 hours of leave without pay. §
Def.'s SOF at 11 72 & Pl.'s SOF at 5. By early March 2004, Solomon began communicating with
her supervisors about her condition, and on March 24, 2004, Dr_ confirmed to USDA
2 Pursuant to Local Rule 7(h), each party submitted a statement of facts as part of their
briefing on the Secretary's motion for summary judgment.
3 Agoraphobia is an anxiety disorder characterized by the fear of being around other
people.
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that Solomon was under his care. S_ee_ Def``.'s SOF at 1111 73-74 & Pl.'s SOF at 5. Dr. -
requested a "f``lexible work schedule" for Solomon -- a schedule that would permit her "to
determine whether she was able to work on a particular day and to work at home when
necessary." § Def.'s SOF at 11 74 & Pl.'s SOF at 5. Solomon also requested a larger cubicle.
g Def.'s SOF at 11 79 n.l & Pl.'s SOF at 6. Solomon and her supervisor communicated about
these requests in April 2004, but Solomon stopped going to work on April 23, 2004, §e_e_ Def.'s
SOF at 1111 84-86 & Pl.'s SOF at 6.
Dr. _sent several letters to the USDA about Solomon after she stopped working.
On May 10, 2004, he wrote that Solomon's condition had "prevented her from attending work."
§ Def.'s SOF at 1[ 88 & Pl.'s SOF at 6. Dr. _wrote on June 2, 2004 to inform the USDA
about Solomon's_ and reported that she remained unable to work, although he
estimated that she would be able to retum to work in mid-July. § Def.'s SOF at{] 91 & Pl.'s
SOF at 6. At the same time, Solomon continued to communicate with her supervisors. On May
26, 2004, she asked permission to telecommute part-time. § Def.'s SOF at 11 94 & Pl.'s SOF at
6-7. And in early July 2004, Solomon applied to enter the USDA's Voluntary Leave Transfer
Program. S_ee_ Def.'s SOF at 11 96 & Pl.'s SOF at 7.
But by mid-July, Solomon wrote to Dr. -that she had "decided to go for[ward]
with the permanent disability package." §=,_e Def.'s SOF at 11 102 (quoting Def. Mem. Ex. 19) &
Pl.'s SOF at 7. Solomon was referring to retirement disability benefits available under the
Federal Employees Retirement System ("FERS") program. Solomon (and Dr. n
4 Solomon already worked a flexible schedule that permitted her to work four days each
week. Deposition of Linda Solomon at 56, l0l.
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completed the documentation required for FERS disability benefits and submitted the forms on
August 30, 2004. § Def``.'s Mem. Ex. 2. The application queried whether the "agency [has]
been able to grant your request [for accommodations]," to which Solomon responded "No." Ld.
In an attachment to the application, Solomon wrote that "[s]ince April 2004, I have been unable
to work because my medical condition remains in crisis after _and continued
treatment. My illnesses have severely affected my attendance at work since May 2003, [and]
have interfered with my ability to perform the duties of my position." I_d. Dr. -also
submitted a letter in support of Solomon's application for FERS benefits, opining that "[i]t has
become clear that " Def.'s Mem. Ex.
25.
Solomon's application for FERS disability benefits was approved on December 16, 2004,
§ Def.'s Mem. Ex. 3, and she began receiving benefits (retroactive to the date of application) in
January 2005, § Solomon Dep. at 43:l8-44:8. Beginning in January 2005, Solomon received
approximately $l,400 per month in FERS disability benefits.$ I_d. at 46:3-19. Since then, she
has continued to represent that she cannot return to work because of her disability. §e_e_ Def.'s
Mem. Ex. 18 at 26 (letter of Dr. _stating that "Ms. Solomon is . . and
cannot ") (dated Dec. 5, 2007). On
September 7, 2007, Solomon filed the pending complaint. The Secretary filed a motion for
summary judgment on February 4, 2009. Briefing was completed on August 6, 2009, and the
motion is now ripe for resolution.
5 Solomon also received approximately $l,900 per month in benefits through the Social
Security Disability insurance ("SSDI") program. § Solomon Dep. at 46:3-22.
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STANDARD
Summary judgment is appropriate when the pleadings and the evidence demonstrate that
"there is no genuine issue as to any material fact and that the movant is entitled to judgment as a
matter of law." Fed. R. Civ. P. 56(c). The party seeking summary judgment bears the initial
responsibility of demonstrating the absence of a genuine dispute of material fact. § Cilot_ex
Corp. v. Catrett, 477 U.S. 3 l 7, 323 (1986). The moving party may successfully support its
motion by identifying those portions of "the pleadings, the discovery and disclosure materials on
file, and any affidavits" that it believes demonstrate the absence of a genuine issue of material
fact. Fed. R. Civ. P. 56(c); g C_e_l_gt_e_x, 477 U.S. at 323. In determining whether there exists a
genuine issue of material fact sufficient to preclude summaryjudgment, the court must regard
the non-movant's statements as true and accept all evidence and make all inferences in the
non-movant's favor. § Anderson v. LibeLty Lobby, Inc., 477 U.S. 242, 255 (1986). A
non-moving party, however, must establish more than the "mere existence of a scintilla of
evidence" in support of its position. I_d. at 252. By pointing to the absence of evidence proffered
by the non-moving party, a moving party may succeed on summary judgment. Celotex, 477 U.S.
at 322. "If the evidence is merely colorable, or is not significantly probative, summary judgment
may be granted." Anderson, 477 U.S. at 249-50 (citations omitted). Summary judgment is
appropriate if the non-movant fails to offer "evidence on which the jury could reasonably find
for the [non-movant]." I_d. at 252.
ANALYSIS
I. Rehabilitation Act Claim
The Court's analysis of Solomon's Rehabilitation Act claim begins and ends with the
resolution of a threshold issue: whether a plaintiff who applies for and receives FERS disability
benefits may pursue a claim for failure to accommodate a disability. Because, as discussed
below, FERS disability benefits are only available for individuals whose disabilities cannot be
accommodated, the Court concludes that the recipient of such benefits is precluded from
pursuing relief under the Rehabilitation Act based on a claim that failure to accommodate a
disability was discriminatory.
FERS disability benefits are available to federal employees who have completed eighteen
months of civilian service and who are "unable, because of disease or injury, to render useful and
efficient service." g 5 U.S.C. § 8451(a)(l). The Office of Personnel Management ("OPM"),
the agency responsible for administering FERS, has promulgated implementing regulations
providing that FERS disability benefits are only available if "[a]ccommodation of the disabling
medical condition in the position held [is] unreasonable." 5 C.F.R. § 844.l03(a)(4).
These requirements for eligibility distinguish FERS disability benefits from most other
federal disability benefits programs. The SSDI program, for example, "does _rg)t take the
possibility of 'reasonable accommodation' into account." Cleveland v. Policy Mgmt. Sys. Corp.,
526 U.S. 795, 803 (1999) (emphasis in original). Hence, there may be "situations in which an
SSDI claim and an [Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ l2l0l, ;ctlq¢]
claim can comfortably exist side by side." I_d. The Supreme Court therefore concluded in
Cleveland that receipt of SSDI benefits does not automatically preclude plaintiffs from claiming
that they should have been provided reasonable accommodations under the Rehabilitation Act or
the ADA. 526 U.S. at 803; see also Swanks v. WMATA, 116 F.3d 582, 586 (D.C. Cir. 1997)
(same).
Courts that have considered whether the receipt of FERS disability benefits bars lawsuits
based on a failure to accommodate have adopted two approaches. One approach is that taken in
Arneson v. Heckler, 879 F.2d 393 (8th Cir. 1989), which pre-dates the Supreme Court's opinion
in Cleveland. 1n Arneson, the court recognized that receipt of retirement disability benefits°
would bar a Rehabilitation Act claim unless the plaintiff could show that his application for
retirement benefits was involuntary. I_d_. at 396. This focus on voluntariness has been limited,
for the most part, to the Eighth Circuit, although one other circuit court has cited to l
approvingly in an unpublished table opinion. § Emerson v. Widnall, 104 F.3d 367 at *3 (l0th
Cir. Dec. 24, l996).
The second approach, which has arisen in the wake of Cleveland,7 has been adopted by
otherjudges ofthis Court. In Chinchillo v. Powell, 236 F. Supp. 2d 18, 27 (D.D.C. 2003), the
court observed that "[a]n employee cannot plausibly claim that he is unable to work at all to
obtain FERS benefits but able to work with an accommodation in connection with a
Rehabilitation Act claim." Having examined the Supreme Court's opinion in Cleveland, the
court in Chinchillo reasoned that "[a] plaintiff filing both a FERS claim for benefits and a
Rehabilitation Act claim of discrimination cannot reconcile the inherent conf``lict, as might a
plaintiff who sought SSDI benefits along with relief based on a claim of discrimination." lcL
The court then granted the defendant's summary judgment motion "[b]ased on plaintiffs
° The plaintiff in Ameson applied for benefits under the Civil Service Retirement System
("CSRS"), the federal employees' retirement system that preceded FERS. CSRS, like FERS, is
only available if "[t]he employing agency [is] unable to accommodate the disabling medical
condition in the position held or in an existing vacant position." 5 C.F.R. § 83 l.1203(a)(4).
7 S_ec_: Faconti v. Potter, 242 Fed. Appx. 775, 776 (2d Cir. 2007); Wallace v. Soc. Sec.
Admin., 108 F. Supp. 2d 716, 719 (S.D. Tex. 2000).
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application for FERS benefits." I_d_.
These same principles animated the decision in Holmes-Martin v. Leavitt, 569 F. Supp.
2d 184 (D.D.C. 2008).8 After discussing the tension between CSRS disability benefits and ADA
reasonable accommodation claims, the court distinguished Cleveland by pointing out that the
same tension did not exist between SSDI benefits and reasonable accommodation claims. l_cL at
194-95. The court then surveyed the sparse case law on this issue, including int Ld. at
195. The court in Holmes-Martin elected not to follow the Arneson "voluntariness" approach
because, after Cleveland, "the voluntariness of the retirement is secondary to the preclusive
effect of obtaining disability benefits under the CSRS." l_d. In Cleveland, the Supreme Court did
"not consider the voluntariness of retirement; instead the Court analyze[d] whether the SSA and
the ADA are orthogonal avenues of relief``." I_328 F.3d 647, 651 (D.C. Cir. 2003) (quoting Mitchell v. Baldrige, 759 F.2d 80,
86 (D.C. Cir. 1985)). For the second element, an action is adverse if a plaintiff can show "that a
reasonable employee would have found the challenged action materially adverse, 'which in this
context means it well might have dissuaded a reasonable worker from making or supporting a
charge of discrimination."' Burlington Northern & Santa Fe Rv. Co. v. White. 548 U.S. 53, 68
(2006) (quoting Rochon v. Gonzales, 438 F.3d 121 1, 1219 (D.C. Cir. 2006)) (some quotations
omitted). Solomon contends that the Secretary's denial of her request for accommodation
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qualifies as an adverse action. g Compl. 11 27, Opp'n at 44.
But Solomon's Title VII retaliation claim fails for the same reason her Rehabilitation Act
claim does: her request for accommodation cannot be squared with her application for and
receipt of FERS disability benefits. A failure to grant Solomon requested accommodations
cannot be "adverse" if she could not reasonably have been accommodated. And, as discussed
above, Solomon is only eligible for FERS disability benefits because "[a]ccommodation of the
disabling medical condition in the position held [is] unreasonable." g 5 C.F.R. §
844.l03(a)(4). Accordingly, summary judgment will be granted in favor of the Secretary on
Solomon's retaliation claim as well.
III. ADEA Claim
Under the ADEA, Solomon must show that she suffered an adverse employment action
because of her age. § Baloch v. Kempthorne, 550 F.3d 1 191, 1196 (D.C. Cir. 2008).
According to the Secretary, Solomon's only evidence that certain actions were (or were not)
taken because of her age is her own speculation. Def.'s Mem. at 36. When Solomon was asked
at her deposition why she believed that requests for accommodation had been denied because of
her age, she responded that "I was 50, 1 don't dye my hair, and you can get a younger person to
do the work that 1 was doing, probably at a lower grade. That's money." Solomon Dep. at
220:1-8. In her opposition brief``, Solomon does not point to any other evidence to show that
allegedly adverse actions were (or were not) taken because of her age. Rather, she contends that
a reasonable fact-finder could infer discrimination from the totality of the record. § Pl.'s Opp'n
at 45-46.
At this stage of proceedings, however, a plaintiff must point to "evidence . . . probative of
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establishing discriminatory animus." § Holcomb v. Powell, 433 F.3d 889, 901 (D.C. Cir.
2006). "The possibility that a jury might speculate in the plaintiffs favor is insufficient to defeat
summary judgment." §e_€_: Haynes v. Williams, 392 F.3d 478, 485 (D.C. Cir. 2004) (citing
Rogers Corp. v. EPA, 275 F.3d 1096, 1103 (D.C. Cir. 2002)). Here, Solomon has pointed to no
evidence establishing discrimination because of her age, other than her own bald speculation,
and hence summary judgment will be granted in favor of the Secretary on Solomon's ADEA
claim.
CONCLUSION
Summary judgment will be granted in favor of the Secretary on all counts. Solomon's
Rehabilitation Act claim is precluded by her application for and receipt of FERS disability
benefits, which she is only eligible for because her disability cannot reasonably be
accommodated. Her Title Vll retaliation claim fails for the same reason. Finally, summary
judgment will be granted against Solomon on her claim under the ADEA because she has
provided no evidence to establish that any actions were taken because of her age. A separate
order accompanies this memorandum opinion.
/s/ John D. Bates
JOHN D. BATES
United States District Judge
Date: August 31, 2009
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