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Solomon v. Vilsack

United States Court of Appeals, District of Columbia Circuit

August 15, 2014


Argued March 17, 2014.

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.

Before: HENDERSON and MILLETT, Circuit Judges, and GINSBURG, Senior Circuit Judge.


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

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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.

I. Background

A. Statutory Framework

The Rehabilitation Act " was the first major federal statute designed to provide assistance to the whole population of" individuals

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with disabilities. Shirey v. Devine, 670 F.2d 1188, 1193, 216 U.S. App. D.C. 369 (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

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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 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


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

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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 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

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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

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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, 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.


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

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* * * 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.

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

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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."


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,

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the Human Resources Chief. At Christian's direction, Solomon's supervisors refused to allow her to work past 6:00 p.m.

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 ...

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