Mogenhan v. Napolitano

• Decision Date: 27 July 2010
• Docket Number: No. 08-5457.,08-5457.
• Citation: 613 F.3d 1162
• Parties: Ann Marie MOGENHAN, Appellant v. Janet Ann NAPOLITANO, Secretary, Department of Homeland Security, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

613 F.3d 1162

Ann Marie MOGENHAN, Appellant

v.Janet Ann NAPOLITANO, Secretary, Department of Homeland Security, Appellee.

No. 08-5457.

United States Court of Appeals,District of Columbia Circuit.

Argued Feb. 16, 2010.

Decided July 27, 2010.

Appeal from the United States District Court for the District of Columbia (No. 1:98-cv-00817).

Morris E. Fischer argued the cause and filed the briefs for appellant.

R. Craig Lawrence, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief was Christian A. Natiello, Assistant U.S. Attorney.

Before HENDERSON and GARLAND, Circuit Judges, and EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge GARLAND.

GARLAND, Circuit Judge:

Ann Marie Mogenhan sued her employer, the United States Secret Service, alleging that it violated the Rehabilitation Act by retaliating against her for filing a discrimination complaint and by failing to reasonably accommodate her disability. The district court granted summary judgment in favor of the Service. We reverse the grant of summary judgment on Mogenhan's retaliation claim because the retaliatory actions she alleged might well have dissuaded a reasonable person from engaging in protected activity. We affirm the grant of summary judgment on Mogenhan's failure-to-accommodate claim, however, because there is no genuine dispute that the Service reasonably accommodated her disability.

I

On January 12, 1990, the Secret Service interviewed Mogenhan for a position as a management analyst. Mogenhan told the Service that she suffered from severe migraines triggered by poor ventilation and heat. And she requested an “accommodation ... allowing me to go out on workman's compensation if I became ill, or ... to leave my workstation and go outside for fresh air.” Mogenhan Aff. at 13-14. The Secret Service agreed. Mogenhan was hired and, on September 23, 1990, began work as a GS 9 Management Analyst.

On July 25, 1991, Mogenhan's supervisor, John Machado, gave Mogenhan her first performance appraisal, on which she scored 300 out of 400 possible points. After she objected on the ground that she had not been informed of the job elements upon which she would be evaluated, Machado advised her of those elements and opened a substitute appraisal period. On January 16, 1992, Machado gave Mogenhan a substitute appraisal that reflected her promotion to GS 11 status, awarded her 270 out of 400 possible points, and rated her performance “Fully Successful.” On February 28, Mogenhan filed an equal employment opportunity (EEO) complaint against Machado and other supervisors charging, among other things, that the January appraisal constituted gender and disability discrimination.

Mogenhan received her next performance appraisal on July 20, 1992. On that appraisal, Machado gave Mogenhan 280 of 400 possible points and, again, a performance rating of “Fully Successful.” This time, he wrote that he scored her as he did because she had “difficulty maintaining good working relationships,” was “ineffective in dealing with conflict,” and generally had “a negative effect on the morale and motivation of other employees.” Mogenhan Appraisal (July 20, 1992).

On August 7, 1992, Mogenhan sought EEO counseling with respect to her February discrimination complaint. Twenty days later, Machado posted the February complaint on the Secret Service intranet, where Mogenhan's fellow employees could and did access it. He posted the complaint, she said, “to ostracize me with other agency employees and label me as a ‘troublemaker.’ ” Mogenhan Aff. at 5 (Dec. 1, 2004). Then, on September 10, Machado increased her workload to five to six times that of other employees, indicating that he was “doing so ‘to keep [her] too busy to file complaints.’ ” Id.

In 1991, Mogenhan's migraines grew more frequent, and she realized that her workspace had become warmer. At some unspecified time after that, she asked Machado “to cool the area off ... in any manner that he could.” Mogenhan Tr. at 74. The Secret Service then undertook two air quality studies, see Indoor Air Quality Assessment (Dec. 30, 1991); Indoor Air Quality Assessment (May 21, 1992), implemented several of the studies' recommendations to increase ventilation, and installed large fans. In October 1992, the Service moved Mogenhan to an individual office and installed an air conditioner for her.

On March 9, 1998, Mogenhan filed suit against the Secret Service in the U.S. District Court for the District of Columbia, charging gender discrimination, disability discrimination, creation of a hostile work environment, and retaliation, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e; the Americans with Disabilities Act of 1990(ADA), 42 U.S.C. § 12101 et seq. ; and the Rehabilitation Act of 1973, 29 U.S.C. § 791 et seq. In September 2008, the district court granted summary judgment in favor of the government on all counts. Mogenhan v. Chertoff, 577 F.Supp.2d 210, 220 (D.D.C.2008). On appeal, Mogenhan substantively disputes only two Rehabilitation Act claims: that the Service retaliated against her for filing discrimination complaints, and that it failed to reasonably accommodate her disability. Accordingly, we address only those challenges. ¹

II

We review the district court's grant of summary judgment de novo and “must view the evidence in the light most favorable to the nonmoving party.” Breen v. Dep't of Transp., 282 F.3d 839, 841 (D.C.Cir.2002); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Summary judgment is appropriate only if “there is no genuine issue as to any material fact and ... the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c)(2); see Anderson, 477 U.S. at 247-48, 106 S.Ct. 2505. A dispute about a material fact is not “genuine” unless “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505. We consider Mogenhan's retaliation claim in subpart A and her failure-to-accommodate claim in subpart B.

A

The Rehabilitation Act provides that “[n]o otherwise qualified individual with a disability” may “be subjected to discrimination” by any 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 [provisions of] the Americans with Disabilities Act.” Id. § 794(d). The ADA, in turn, has both an anti-discrimination and an anti-retaliation provision. The anti-discrimination provision makes it unlawful to “discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). The anti-retaliation provision, which is at issue here, bars “discriminat[ion] against any individual because such individual ... made a charge ... under this chapter.” Id. § 12203(a); see Smith v. District of Columbia, 430 F.3d 450, 454-55 (D.C.Cir.2005).

The district court held that, for retaliatory conduct to be actionable, it must meet the same threshold of adversity required for discriminatory conduct. Mogenhan, 577 F.Supp.2d at 216. That is, the conduct must constitute an “adverse employment action,” id., which the court defined as an action that results in “ ‘materially adverse consequences affecting the terms, conditions, or privileges of employment,’ ” id. at 215 (quoting, inter alia, Holcomb v. Powell, 433 F.3d 889, 902 (D.C.Cir.2006)). Under that standard, the court rejected Mogenhan's retaliation claims. Id. at 216. This was error.

In Steele v. Schafer, we confronted this issue in the context of an action brought under Title VII of the Civil Rights Act, which contains anti-discrimination and anti-retaliation provisions that are indistinguishable from those of the ADA.

535 F.3d 689, 695 (D.C.Cir.2008). ² As we explained in Steele, the Supreme Court held in Burlington Northern that, because the “ ‘language of the substantive [anti-discrimination] provision differs from that of the anti-retaliation provision in important ways ... Title VII's substantive provision and its anti-retaliation provision are not coterminous.’ ” Steele, 535 F.3d at 695 (quoting Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 61, 67, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006)). The Burlington Northern Court expressly rejected the Sixth Circuit's standard for retaliation claims-which was the same standard that circuit had applied to discrimination claims and the same standard the district court applied to Mogenhan's claims in this case. 548 U.S. at 60, 126 S.Ct. 2405; see Steele, 535 F.3d at 695. In its place, the Court adopted the following standard: “[A] plaintiff must 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, 548 U.S. at 68, 126 S.Ct. 2405 (internal quotation marks omitted); see Steele, 535 F.3d at 696; see also Gaujacq v. EDF, Inc., 601 F.3d 565, 577 (D.C.Cir.2010); Baloch v. Kempthorne, 550 F.3d 1191, 1198 n. 4 (D.C.Cir.2008). In Baloch v. Kempthorne, this court applied the Burlington Northern standard to retaliation claims under the Rehabilitation Act as well as Title VII. See Baloch, 550 F.3d at 1198.

Applying this standard to Mogenhan's claims, we conclude that she proffered evidence from which a reasonable jury could find that the Secret Service retaliated against her in ways that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Burlington Northern, 548...