Woodruff v. Peters

• Decision Date: 06 April 2007
• Docket Number: No. 05-5033.,05-5033.
• Citation: 482 F.3d 521
• Parties: Phillip S. WOODRUFF, Appellant v. Mary E. PETERS, Secretary, U.S. Department of Transportation, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

482 F.3d 521

Phillip S. WOODRUFF, Appellant v. Mary E. PETERS, Secretary, U.S. Department of Transportation, Appellee.

No. 05-5033.

United States Court of Appeals, District of Columbia Circuit.

Argued October 10, 2006.

Decided April 6, 2007.

Appeal from the United States District Court for the District of Columbia (No. 01cv01964).

Mary G. Sprague, appointed by the court, argued the cause as amicus curiae for appellant. With her on the brief was Donald R. Gordon, appointed by the court.

Peter S. Smith, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Kenneth L. Wainstein, U.S. Attorney at the time the brief was filed, and R. Craig Lawrence, Assistant U.S. Attorney. Michael J. Ryan and William R. Cowden, Assistant U.S. Attorneys, entered appearances.

Before: HENDERSON, ROGERS and BROWN, Circuit Judges.

BROWN, Circuit Judge.

Appellant Phillip Woodruff asserted discrimination and retaliation claims against the Secretary of Transportation. The district court granted summary judgment in favor of the Secretary on both claims. We now reverse the district court's order relating to the discrimination claim, affirm the order relating to the retaliation claim, and remand for further proceedings.

I

For several years, Woodruff worked for the Federal Aviation Administration (FAA), leading a team that produced educational materials. On or about September 29, 1995, Woodruff was injured in a fall at work. One month later, Woodruff's manager, James Boone, signed a telecommuting agreement, permitting Woodruff to work from home up to two days per week. The FAA encouraged such agreements in order to reduce the FAA's environmental impact by minimizing overall commute time, but the FAA Telecommuting Handbook required that the agreements identify in advance the days when the employee would work from home. Woodruff's agreement did not do so, listing his telecommuting days as "variable."

In April 1996, Carson Eoyang took over as Woodruff's manager. Friction with Eoyang and others led Woodruff to file an EEOC complaint in February 1997. The claims asserted in that complaint are not before us in this case.

Meanwhile, Woodruff's symptoms worsened, and he went on leave from April 30, 1997, through February 2, 1998—a period that included back surgery on May 1, 1997, and a lengthy recuperation. While Woodruff was away, Eoyang took on many of Woodruff's supervisory responsibilities himself. Upon Woodruff's return to work, Eoyang told him he could resume his supervisory duties only when he was able to return to work on a regular basis, with predictable hours that overlapped with those of most of his subordinates. Woodruff followed up with Eoyang repeatedly to see if this decision could be amended. In a typical memo, Eoyang responded:

While you have gradually increased your hours to 80 hours a pay period, you have yet to be able to resume a regular schedule such that I can rely on your availability as a supervisor.

. . . .

. . . If, at some point, you return to a regular, full-time schedule and are able to work a regular eight- or nine-hour schedule, without the breaks you now have, I will reconsider my decision at that time.

Memorandum from Eoyang to Woodruff (Apr. 30, 1998) ["Apr. 30 Memo"].

Woodruff's return to work proceeded in incremental stages. Citing medical evaluations indicating he needed extensive rest and daily therapy, Woodruff at first worked only four hours a day. He was able to return to full-time work by April, thanks to accommodations from the FAA, including being allowed to work much of the time from home or a telecommuting facility; to take a break in the middle of the day to recuperate; and to choose office hours that minimized his commute time. Eoyang agreed to these accommodations with the following proviso: "if you are unable to work a fixed schedule, I will expect that you will provide me with your weekly work schedule by Friday of the prior week." Memorandum from Eoyang to Woodruff (Feb. 9, 1998).

The FAA Telecommuting Handbook described telecommuting as "a supervisor-approved work option," emphasizing "employees have no automatic right to continue in the program in the event of a change of supervisor or position." Thus, at least formally, Woodruff's telecommuting agreement expired when Eoyang replaced Boone, and Eoyang never signed a new agreement.

However, Woodruff apparently viewed Eoyang's February 9 memo as an extension of his earlier telecommuting agreement in all but name. When Debbie Holden, who monitored the FAA's telecommuting program, asked for an update on his agreement, Woodruff simply filled out a new form reflecting the February 9 memo without obtaining a signature from Eoyang. Woodruff submitted such unsigned forms on at least two separate occasions.

Woodruff argues the following protected acts triggered illegal discrimination by Eoyang. First, on August 10, he deposed Eoyang regarding allegations from his February 1997 EEOC complaint. Second, on August 11, he contacted an EEOC Counselor to commence an additional EEOC complaint proceeding regarding Eoyang's refusal to reinstate his supervisory authority. Third, on August 24, he met with the Counselor regarding his second complaint.

Coincidentally or not, Eoyang sent Woodruff a memo on September 3 revoking some of the accommodations Woodruff had previously enjoyed:

While, heretofore, I have allowed you maximum flexibility with respect to your work schedule—allowing you to work a split schedule providing for a rest period in between and approving both annual and sick leave on a liberal basis—please be advised that I can no longer continue to do so indefinitely. . . . I can no longer accommodate a schedule whereby I do not know from day-to-day whether you will report to the office or not.

Memorandum from Eoyang to Woodruff (Sept. 3, 1998) ["Sept. 3 Memo"]. In the same memo, Eoyang indicated it had "come to [his] attention" that Woodruff had supplied Holden with unsigned telecommuting forms:

I note that the "updated" agreement you provided Ms. Holden was not signed by me, your supervisor, as required, nor did you ever discuss the agreement with me .... [P]lease be advised that I do not consider either the agreement completed in November 1995 or the update you submitted on February 2, 1998, without my knowledge, to be valid.

Id. On September 10, 1998, Woodruff again contacted the EEOC Counselor and added Eoyang's September 3 memo to his list of grievances.

Woodruff's second EEOC complaint was officially filed on December 1, 1998. On June 12, 2001, the Department of Transportation (DOT) issued its Final Agency Decision (FAD) on that complaint, dismissing some of the claims and finding for the FAA on the others. Woodruff received notice of the FAD "on or about June 15." Pl.'s Statement Genuine Issues Material Fact ["Woodruff's Issue Statement"] at 9 ¶ 23.

Woodruff filed a complaint against the Secretary in the district court on September 14, 2001, and the court subsequently granted his motion to amend the complaint. Finally, in 2003, Woodruff moved to file a Second Amended Complaint, which we treat as the official complaint for purposes of the current case.¹

On January 3, 2005, the court granted summary judgment in favor of the Secretary on all of Woodruff's claims, and Woodruff appealed. After Woodruff's counsel withdrew, this court appointed amicus curiae ("Amicus") to represent Woodruff. Amicus filed briefs challenging the grants of summary judgment only as to Woodruff's claims of (1) discrimination based on disability and (2) retaliation based on EEOC activity. As Woodruff has adopted Amicus's briefs as his own, we consider all other claims abandoned.

II

Before addressing the merits of Woodruff's appeal, we resolve two procedural issues.

First, the Secretary argues Woodruff's complaint before the district court was barred by 42 U.S.C. § 2000e-16(c). That subsection—the basis for discrimination actions against federal employers— requires that district court complaints be filed "[w]ithin 90 days of receipt of notice" of the defendant agency's FAD. Courts apply this limit strictly and "will dismiss a suit for missing the deadline by even one day." Wiley v. Johnson, 436 F.Supp.2d 91, 96 (D.D.C.2006); see also Harris v. Sec'y, U.S. Dep't of Veterans Affairs, 126 F.3d 339 (D.C.Cir.1997) (giving effect to a complaint filed one day late only because the Department failed to raise the untimeliness in its answer). Woodruff has stated he received notice "on or about June 15, 2001," which is 91 days before his district court complaint was filed. If Woodruff received notice of the FAD on or before June 15, his complaint was untimely.

But a plaintiff's failure to meet the § 2000e-16(c) deadline is an affirmative defense, Harris, 126 F.3d at 341, and the burden of proof is on the party claiming the deadline was missed. The Secretary has failed to meet the burden here. The DOT sent Woodruff notice of the FAD on June 12, but nothing in the record establishes when Woodruff received this notice. The DOT's letter was marked "return receipt requested," but no receipt was introduced into evidence. Woodruff's Issue Statement and exhibits are inconclusive. While we could speculate that Woodruff's statement that he received the notice "on or about June 15" makes it more likely than not that his civil complaint was untimely, such speculation does not take the place of hard proof, which the Secretary simply has not provided. Therefore, DOT's affirmative defense of untimely filing fails.

Second, the Secretary contends that Amicus's arguments regarding (1) adverse employment actions Woodruff claims to have incurred in September 1998 and (2) Woodruff's status as a "qualified individual with a disability" were not raised before the district court and were thus waived. "It is the general rule, of course, that a federal appellate court does not consider an issue not passed upon below." Singleton v. Wulff, 428 U.S. 106,...