Breen v. Department of Transp.

• Decision Date: 15 March 2002
• Docket Number: No. 00-5363.,00-5363.
• Citation: 282 F.3d 839
• Parties: Victoria L. BREEN, Appellant, v. DEPARTMENT OF TRANSPORTATION, Federal Highway Administration and Norman Y. Mineta, Administrator, Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 839

282 F.3d 839

Victoria L. BREEN, Appellant, v. DEPARTMENT OF TRANSPORTATION, Federal Highway Administration and Norman Y. Mineta, Administrator, Appellees.

No. 00-5363.

United States Court of Appeals, District of Columbia Circuit.

Argued November 20, 2001.

Decided March 15, 2002.

Appeal from the United States District Court for the District of Columbia (No. 97cv01003).

Kurt W. Hague argued the cause for appellant. With him on the briefs were Theodore Whitehouse and Joseph G. Davis.

Scott S. Harris, Assistant U.S. Attorney, argued the cause for appellees. With him on the brief were Roscoe C. Howard, Jr., U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.

Before: GINSBURG, Chief Judge, ROGERS and GARLAND, Circuit Judges.

Opinion for the Court filed by Circuit Judge GARLAND.

GARLAND, Circuit Judge:

Victoria Breen, a former file clerk at the Federal Highway Administration, brought this suit alleging that she was discharged from her job in violation of the Rehabilitation Act, 29 U.S.C. § 791 et seq. Breen alleges that she suffers from mental and physical disabilities, but would have been able to perform her work with a reasonable accommodation. The district court granted summary judgment against Breen on the ground that no reasonable accommodation would have enabled her to perform the essential functions of her position. Because we find that there are genuine issues of material fact as to Breen's ability to perform with an accommodation, we reverse the judgment of the district court.

I

Viewed in the light most favorable to the plaintiff, the facts are as follows. Breen began working as an office automation clerk at the Federal Highway Administration (FHWA) in 1991, with duties that included the maintenance of office files. For the first several years, she received "satisfactory" evaluations. Some time in 1994, in connection with taking time off for knee surgery, Breen developed a backlog of filing that she was unable to reduce in a timely fashion — to the growing dissatisfaction of her employer. Beginning in December 1994, the FHWA rated her performance as "needs improvement" and implemented a series of "Performance Improvement Plans" (PIPs), which, inter alia, admonished her to accomplish her filing duties more expeditiously.

In November 1995, Breen provided the FHWA with letters from her doctors that showed that she suffered from a variety of physical and psychiatric disorders, the one most relevant to the accommodation at issue in this case being obsessive-compulsive disorder.¹ The letter from Breen's psychiatrist, Dr. Julie Redditt, also suggested certain accommodations. Most relevant here were Dr. Redditt's suggestions for a "structured time schedule which rarely varies without at least a week's notice" and for an "[a]bsence of `extra' or different tasks requested during her work period, especially the filing period." 1995 Redditt Letter at 4 (Nov. 15, 1995). The psychiatrist stated that Breen "is able to perform each of the required operations of her job as an office automation clerk," and that with the accommodations "Ms. Breen's performance could return to its previous level." Id. at 4, 5. Dr. Redditt suggested the same accommodations in a second letter dated February 12, 1996. 1996 Redditt Letter at 1 (Feb. 12, 1996).

Breen herself proposed accommodations at various times between the onset of her employer's dissatisfaction and her termination. Chief among these was an "alternative work schedule," pursuant to which she would have worked one hour past normal business hours every day for eight days, in exchange for one day off every two-week pay period — thus maintaining a normal eighty-hour pay period.² According to Breen, the "hour of quiet time after business hours to do solid filing" would have permitted her to complete her filing without the interruptions that she found difficult to deal with as a consequence of her obsessive-compulsive disorder. Rev. Breen Decl. ¶ 30; see id. ¶ 27. Breen requested this accommodation a number of times. At the end of her second and third PIPs in June and September 1995 respectively, Breen asked for an alternative work schedule that would have permitted her to work during the "quiet hours." Id. ¶¶ 6, 37. Breen also presented her request for an alternative work schedule at a meeting on February 29, 1996, id. ¶ 18, and again in writing one month later, Mem. from Breen to Perros (requesting "Alternative Work Schedule or overtime (with compensatory time)") (Apr. 1, 1996).

The FHWA declined to grant Breen the alternative work schedule, or any of the other accommodations she requested, and, on April 16, 1996, terminated her employment. One year later Breen filed this lawsuit, alleging that her termination was unlawful under the Rehabilitation Act, 29 U.S.C. § 791 et seq., because the FHWA had failed to reasonably accommodate her disabilities. The FHWA moved to dismiss or alternatively for summary judgment. Both sides filed affidavits setting forth their versions of the facts, and Breen's counsel filed an additional affidavit pursuant to Federal Rule of Civil Procedure 56(f) requesting discovery. The district court granted summary judgment against Breen, without permitting discovery, on the ground that "no reasonable accommodation will enable her to perform the essential functions of her position." Breen v. United States Dep't of Transp., No. 97-1003 (D.D.C. Sept. 11, 2000).

II

The Rehabilitation Act provides that "[n]o otherwise qualified individual with a disability" may be discriminated against by a federal agency "solely by reason of her or his disability." 29 U.S.C. § 794(a). The Act states that "[t]he standards used to determine whether this section has been violated in a complaint alleging employment discrimination under this section shall be the standards applied under [certain provisions of] the Americans with Disabilities Act [ADA]." 29 U.S.C. § 794(d). The ADA, in turn, bars discrimination against a "qualified individual with a disability... in regard to ... the ... discharge of employees ... and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a). A "qualified individual with a disability" is defined as "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." Id. § 12111(8); see 29 C.F.R. § 1614.203(a)(6) (EEOC Rehabilitation Act regulation).³ Accordingly, an individual with a disability is "qualified" if he or she can perform the essential functions of the position with a reasonable accommodation. Carr v. Reno, 23 F.3d 525, 529 (D.C.Cir.1994). The ADA further defines the term "reasonable accommodation" to include "job restructuring [and] part-time or modified work schedules." 42 U.S.C. § 12111(9); see 29 C.F.R. § 1614.203(c)(2).

The district court granted summary judgment against Breen solely on the ground that no reasonable accommodation would have enabled her to perform the essential functions of her position. We review a grant of summary judgment de novo, and — as we have done in reciting the facts above — must view the evidence in the light most favorable to the nonmoving party. Borgo v. Goldin, 204 F.3d 251, 254 (D.C.Cir.2000). We may affirm a decision granting summary judgment only if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986)). There plainly is a genuine and material factual dispute in this case.

Breen contends that her proposed alternative work schedule would have permitted her to perform her responsibilities by giving her time during the day in which her work would not have been interrupted. In support of this assertion, she offers her own affidavit, an affidavit from a disabilities expert, Barclay Decl. ¶¶ 12-13, and the letters from her psychiatrist referred to above. The FHWA responds with three reasons why Breen's proposal would not have enabled her to perform her responsibilities.

First, the FHWA argues that Breen's proposed alternative work schedule would not have "increased [her] total number of hours," and hence would not have given her any more time to accomplish her filing than she had had before. FHWA Br. at 16. The FHWA is correct that the proposed alternative work schedule, like Breen's prior schedule, would have totaled only eighty hours per pay period. But this contention is wholly unresponsive to the thrust of Breen's request for accommodation. Her request was not for more time, but for uninterrupted time. See Rev. Breen Decl. ¶ 30 ("An alternative work schedule would have provided me with an hour of quiet time after business hours to do solid filing, with no interruptions."). The affidavits of Breen and her disabilities expert, as well as the letters from her psychiatrist, describe the nature of her problem as a difficulty in dealing with unexpected interruptions in assigned tasks. See Rev. Breen Decl. ¶ 30; Barclay Decl. ¶ 12; 1995 Redditt Letter at 4; see also Rev. Breen Decl. ¶ 27 ("Obsessive-Compulsive Disorder makes it hard for me to refocus after changing tasks. It was important for me to have an uninterrupted block of time to complete the filing."). All declare that this problem could have been overcome, and that Breen could have met her responsibilities, if her schedule had been restructured to provide not more time but uninterrupted time. Rev. Breen Decl. ¶ 30; Barclay Decl. ¶¶ 12-13; see also 1995 Redditt Letter at 4 (stating that Breen could perform her job if there were an "[a]bsence of `extra' or different tasks requested during her work period, especially the filing period").

Second, the FHWA contends that, prior to termination, the agency had provided Breen with uninterrupted time, setting aside a period during her workday that was devoted solely to...