Doak v. Johnson

• Decision Date: 18 August 2015
• Docket Number: No. 14–5053.,14–5053.
• Citation: 798 F.3d 1096,31 A.D. Cases 1633
• Parties: Edna DOAK, Appellant v. Jeh Charles JOHNSON, Secretary, U.S. Department of Homeland Security, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

798 F.3d 1096

31 A.D. Cases 1633

Edna DOAK, Appellant

v.Jeh Charles JOHNSON, Secretary, U.S. Department of Homeland Security, Appellee.

No. 14–5053.

United States Court of Appeals, District of Columbia Circuit.

Argued May 8, 2015.

Decided Aug. 18, 2015.

Anabia Hasan argued the cause for appellant. On the brief was Alan Lescht.

John C. Truong, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Ronald C. Machen Jr., U.S. Attorney at the time the brief was filed, and R. Craig Lawrence, Assistant U.S. Attorney. Michelle Lo, Assistant U.S. Attorney, entered an appearance.

Before: GARLAND, Chief Judge, MILLETT and WILKINS, Circuit Judges.

Opinion

Opinion for the Court filed by Circuit Judge MILLETT.

MILLETT, Circuit Judge:

Edna Doak suffers from a variety of debilitating conditions that caused her to miss a significant amount of work, with little or no predictable pattern or advance notice to her employer, the United States Coast Guard. She sought various accommodations from the Coast Guard, which granted many of her requests. But it denied her requests for a later start time and the option to telecommute, among others, because the Coast Guard determined that those accommodations were neither justified by the medical documentation Doak had submitted nor compatible with her job duties. The Coast Guard eventually fired Doak when her attendance did not improve.

Doak then sued the Secretary of the Department of Homeland Security (the Department in which the Coast Guard is housed) (“Coast Guard”) under the Rehabilitation Act, 29 U.S.C. §§ 701 et seq., alleging that it had unlawfully denied her accommodations and terminated her in retaliation for requesting those accommodations. The district court granted summary judgment to the Coast Guard on the grounds that Doak was not a qualified individual able to perform her job duties even with reasonable accommodations and that she had produced no evidence that would permit a reasonable jury to find that the Coast Guard retaliated against her. We affirm.

IStatutory and Regulatory Framework

Congress enacted the Rehabilitation Act of 1973, 29 U.S.C. §§ 701 et seq., “to ensure that the Federal Government plays a leadership role in promoting the employment of individuals with disabilities,” id. § 701(b)(2). To that end, the Act requires that federal employers provide “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) (provision of the Americans with Disabilities Act that is incorporated into the Rehabilitation Act, see 29 U.S.C. § 791(g) (2012) (to be recodified at 29 U.S.C. § 791(f), see Pub.L. No. 113–128, § 456(a), 128 Stat. 1425, 1675 (2014))); 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). An “otherwise qualified individual with a disability,” 42 U.S.C. § 12112(b)(5)(A), is an individual who has “a physical or mental impairment that substantially limits one or more major life activities,” id. § 12102(1)(A), and who “can perform the essential functions” of her job “with or without reasonable accommodation,” id. § 12111(8).

In determining the “essential functions” of a job, “consideration shall be given to the employer's judgment as to what functions of a job are essential [.]” 42 U.S.C. § 12111(8). If an employer “has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job.” Id. The Equal Employment Opportunity Commission (“EEOC”), in turn, has issued regulations defining as “essential functions” those “fundamental job duties of the employment position the individual with a disability holds or desires.” 29 C.F.R. § 1630.2(n). In deciding what is “essential,” the EEOC's interpretive guidance first “focuses on whether the employer actually requires employees in the position to perform the functions that the employer asserts are essential.” 29 C.F.R. Pt. 1630, App. § 1630.2(n). If so, then the question of essentiality comes down to “whether removing the function would fundamentally alter that position.” Id.

The Rehabilitation Act also prohibits retaliation against an individual for exercising her rights under the Act. As relevant here, the Act makes it unlawful 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 * * * any right granted or protected by this chapter.” 42 U.S.C. § 12203(b).

The Rehabilitation Act requires individuals to exhaust administrative remedies before they can file suit to enforce the Act's protections. See Barkley v. United States Marshals Service, 766 F.3d 25, 33 (D.C.Cir.2014) ; see also 29 U.S.C. § 794a(a)(1). For claims against federal agencies, exhaustion requires submitting a claim to the employing agency itself. See Kizas v. Webster, 707 F.2d 524, 543–544 (D.C.Cir.1983) (describing administrative exhaustion process for federal employees as set forth by Title VII, 42 U.S.C. §§ 2000e–5(b), –16(c), and EEOC regulations promulgated under Title VII); 29 U.S.C. § 794a(a)(1) (incorporating certain “remedies, procedures, and rights set forth in” Title VII); Barkley, 766 F.3d at 34 (same process under the Rehabilitation Act).

The procedures governing administrative remedies for discrimination claims against federal agencies are set forth in EEOC regulations. See generally 29 C.F.R. Part 1614. Those regulations provide the procedural framework for processing complaints of discrimination not just under the Rehabilitation Act, but also under a panoply of federal anti-discrimination laws, including Title VII, 42 U.S.C. §§ 2000e et seq. (discrimination on the basis of race, color, religion, sex, and national origin), the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq., the Equal Pay Act, 29 U.S.C. § 206(d) (sex-based wage discrimination), and the Genetic Information Nondiscrimination Act, 42 U.S.C. § 2000ff. See 29 C.F.R. § 1614.103(a).

One of those regulations requires individuals who believe they have been the victim of unlawful discrimination under the relevant laws to consult with an Equal Employment Opportunity (“EEO”) Counselor at the agency where they are employed or sought employment “prior to filing a complaint in order to try to informally resolve the matter.” 29 C.F.R. § 1614.105(a). “An aggrieved person must initiate contact with a Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the effective date of the action,” id. § 1614.105(a)(1), although that deadline has exceptions, id. § 1614.105(a)(2).

If that informal counseling fails to resolve the matter, the aggrieved individual may then file a complaint with the agency that allegedly discriminated against her. See 29 C.F.R. § 1614.106. The filing of that complaint begins the formal administrative grievance process, through which the agency investigates, considers, and decides the merits of the complaint. See id. §§ 1614.107–110. Once that process concludes or stalls, the Rehabilitation Act authorizes the filing of a lawsuit in federal court by “any employee or applicant for employment aggrieved by the final disposition of [her administrative] complaint, or by the failure to take final action on such complaint.” 29 U.S.C. § 794a(a)(1).

Factual Background

From November 2007 until October 2010, Edna Doak worked in the Office of Acquisition Resources Management at the United States Coast Guard, first as a Program Analyst, then as a Management Program Analyst. Her day-to-day responsibilities included monitoring the budget for the Coast Guard's Surface Program, making procurement requests, and attending in-person meetings with a program manager and support team to plan for the building of boats. Doak's supervisors were Greg Cohen and Rory Souther. Doak's unit normally operated between the hours of 6:00 a.m. and 6:00 p.m., Monday through Friday. When authorized, employees could work flexible schedules within those hours as long as they were physically present in the office during the core business hours of 9:30–10:30 a.m. and 1:30–2:30 p.m. Doak's start time was 8:15 a.m., the latest in her unit. Her schedule consisted of eight “nine-hour days” and one “eight-hour” day, with a regular day off, every two weeks.

Doak suffered from hypothyroidism and depression. In the summer of 2009, Doak suffered closed head trauma in a car accident, exacerbating her depression and resulting in hyperthyroidism, migraines, pain in various locations throughout her body, muscle spasms, memory loss, and obstructive sleep apnea. Doak accordingly submitted a request for intermittent leave under the Family and Medical Leave Act (“FMLA”), which the Coast Guard approved in September 2009.

Doak's illnesses and the side effects of her prescribed medications caused her to miss a significant amount of work over the next few months and often made it difficult for her to get to work on time. Around December 2009 or January 2010, Cohen met with Doak to discuss her work-attendance issues. Cohen returned Doak to working an eight-hour day, and explained that he would reauthorize the nine-hour, regular-day-off schedule once her attendance improved. He also informed Doak that she was using up her leave balances at a rapid clip.

On January 19, 2010, Cohen notified Doak in writing that she had nearly exhausted her twelve weeks of FMLA leave and had negative balances of 233 hours of sick leave and 35.15 hours of annual leave. Cohen also explained to Doak that her continued absences and late arrivals were having a negative impact on the office's work. He added that Doak's repeated failures to request leave in advance violated the procedures for requesting leave, and that continued failure to follow those procedures...