Solomon v. Vilsack

• Decision Date: 23 February 2012
• Docket Number: Civil Action No. 07–1590(JDB).
• Citation: 845 F.Supp.2d 61,44 NDLR P 219
• Parties: Linda SOLOMON, Plaintiff, v. Thomas J. VILSACK, U.S. Secretary of Agriculture, Defendant.
• Court: U.S. District Court — District of Columbia

845 F.Supp.2d 61
44 NDLR P 219

Linda SOLOMON, Plaintiff,
v.
Thomas J. VILSACK, U.S. Secretary of Agriculture,¹ Defendant.

Civil Action No. 07–1590(JDB).

United States District Court,
District of Columbia.

Feb. 23, 2012.

[845 F.Supp.2d 63]

John F. Karl, Jr., McDonald & Karl, Washington, DC, for Plaintiff.

Harry B. Roback, U.S. Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION
JOHN D. BATES, District Judge.

Plaintiff Linda Solomon, a former employee of the United States Department of Agriculture, brings this employment discrimination and retaliation action against the Secretary of Agriculture, Thomas J. Vilsack. Solomon alleges that the Secretary violated the Rehabilitation Act of 1973 by unlawfully denying her accommodations for her disability. Solomon also alleges that the Secretary violated the Civil Rights Act of 1964 by denying her the accommodations as an act of retaliation. The Court previously awarded summary judgment to the Secretary on all of Solomon's claims, concluding that they are precluded by Solomon's application for and receipt of federal employee retirement disability benefits. That decision was vacated and remanded by the U.S. Court of Appeals for the District of Columbia Circuit.

Now before the Court is the Secretary's renewed motion for summary judgment on other grounds. The Secretary argues that the accommodations Solomon sought were unreasonable as a matter of law and that therefore the Secretary violated neither the Rehabilitation Act nor the Civil Rights Act. For the reasons described below, the Court will grant the Secretary's motion.

[845 F.Supp.2d 64]

I. Background

Solomon began working as a budget analyst at the United States Department of Agriculture (“USDA”) in 1997. See Pl.'s SOF ¶ 20.² She has a long history of depression and has been treated by mental health professionals, including Dr. Dennis Cozzens, a psychiatrist. See Pl.'s SOF ¶¶ 1–2. Solomon's depression intensified in late 2003 because of various personal hardships she experienced at that time. See Def.'s SOF ¶¶ 12–24. Her mental health in late 2003 into 2004 “was on occasion unpredictable” and she had problems sleeping, concentrating, and focusing. Pl.'s SOF at 2, She began suffering from “panic disorder” and “agoraphobia.” ³

As her depression worsened, Solomon began missing work. In the first ten weeks of 2004, she used more than 110 hours of leave, including 50 hours of leave without pay. See Def.'s SOF ¶ 84. By early March 2004, Solomon began communicating with her supervisors about her condition and requested certain accommodations, described in detail below. See PL's SOF ¶¶ 40, 62–71. On March 24, 2004, Cozzens confirmed to USDA that Solomon was under his care and requested a “flexible work schedule” for Solomon. See Pl.'s SOF ¶ 42. Solomon's supervisors denied her requests for accommodations in April 2004, and, after a confrontation with her supervisors on April 23, 2004 regarding her work schedule, Solomon stopped coming to work. See Pl.'s SOF ¶¶ 73–78.

Dr. Cozzens sent several letters to the USDA about Solomon after she stopped working. Cozzens believed that Solomon had entered a downward cycle by May 2004. See Def.'s SOF ¶¶ 39–41; Pl.'s SOF ¶ 88. On May 10, 2004, he wrote that Solomon's condition had “prevented her from attending work.” See Def.'s SOF ¶ 88. [redacted] See Def.'s SOF ¶¶ 42–46. Cozzens wrote to USDA on June 2, 2004, informing the agency about [redacted], reporting that she remained unable to work, and estimating that she would be able to return to work in mid-July. See Def.'s SOF ¶¶ 90–91; Pl.'s SOF ¶ 89. At the same time, Solomon continued to communicate with her supervisors from home regarding her schedule and leave. See Pl.'s SOF ¶¶ 94–95, 197.

By mid-July 2004, Solomon wrote to Cozzens that she had “decided to go for[ward] with the permanent disability package.” See Def.'s SOF ¶ 102. Solomon describes herself as having been in “crisis” in July 2004. See Def.'s SOF ¶¶ 47, 53. Her condition had not improved by August 2004. See Def.'s SOF ¶¶ 55–58. Solomon and Cozzens completed the documentation required for Federal Employees Retirement System (FERS) disability benefits and submitted the forms on August 30, 2004. See Def.'s SOF ¶¶ 103–06.

Solomon's application for FERS benefits was approved in December 2004. Def.'s SOF ¶ 110. She began receiving benefits (retroactive to the date of application) in January 2005 of approximately $1,400 per month. See Solomon Dep. at 43:18–44:8, 46:3–19. Since then, Solomon has continued to represent that she cannot return to work because of her disability. See Solomon Dep. Def.'s Ex. 18 at 26 (letter of Dr.

[845 F.Supp.2d 65]

Cozzens stating that “Ms. Solomon is still disabled ... and cannot return to her former employment because of this disability”) (dated Dec. 5, 2007).

In September 2007, Solomon filed the present complaint seeking relief under the Rehabilitation Act of 1973, 29 U.S.C. §§ 791 et seq. and Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.⁴ The Secretary filed a motion for summary judgment in February 2009 arguing, among other things, that Solomon's present claims were precluded by her application and receipt of FERS benefits. The Court granted summary judgment on that ground, concluding that Solomon is only eligible for FERS “because her disability cannot reasonably be accommodated.” Solomon v. Vilsack, 656 F.Supp.2d at 63.

On appeal, the D.C. Circuit vacated and remanded, holding that Solomon's “receipt of disability benefits bars neither her claim that her employer failed to accommodate her disability nor a related set of claims that her supervisors retaliated against her for exercising her rights under federal antidiscrimination laws.” Solomon v. Vilsack, 628 F.3d at 557. The court declined to consider the Secretary's alternative ground for summary judgment, that “no reasonable accommodation would have enabled Solomon to perform the essential functions of her position and that her supervisors did not retaliate against her for engaging in statutorily protected activities,” remanding “for the district court to consider this issue in the first instance.” Id. at 568. Now before the Court is the Secretary's renewed motion for summary judgment on that ground.

II. Summary Judgment Standard

Summary judgment is appropriate when the pleadings and the evidence demonstrate that “there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). The party seeking summary judgment bears the initial responsibility of demonstrating the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party may successfully support its motion by identifying those portions of “the pleadings, the discovery and disclosure materials on file, and any affidavits” that it believes demonstrate the absence of a genuine issue of material fact. Fed.R.Civ.P. 56(c); see Celotex, 477 U.S. at 323, 106 S.Ct. 2548. In determining whether there exists a genuine issue of material fact sufficient to preclude summary judgment, the court must regard the non-movant's statements as true and accept all evidence and make all inferences in the non-movant's favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A non-moving party, however, must establish more than the “mere existence of a scintilla of evidence” in support of its position. Id. at 252, 106 S.Ct. 2505. By pointing to the absence of evidence proffered by the non-moving party, a moving party may succeed on summary judgment. Celotex, 477 U.S. at 322, 106 S.Ct. 2548. “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249–50, 106 S.Ct. 2505 (citations omitted). Summary judgment is appropriate if the

[845 F.Supp.2d 66]

non-movant fails to offer “evidence on which the jury could reasonably find for the [non-movant].” Id. at 252, 106 S.Ct. 2505.

III. Rehabilitation Act Claim

Solomon alleges that the Secretary violated the Rehabilitation Act by refusing to accommodate her disability, thereby forcing her into retirement. The Secretary now argues that USDA did not have an obligation to grant Solomon's request for accommodations because the accommodations Solomon sought were unreasonable as a matter of law.

a. Legal Standard

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). See generally Breen v. DOT, 282 F.3d 839, 841 (D.C.Cir.2002). 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.” 29 U.S.C. § 794(d). The ADA bars discrimination against a “qualified individual with a disability,” 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. §§ 12112(a), 12111(8). 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 defines the term “discriminate” to include “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability ... unless ... the accommodation would impose an undue hardship on the operation of the business of such covered entity.” 42 U.S.C. § 12112(b)(5)(A). The ADA further defines the term “reasonable accommodation” to include “job restructuring [and] part-time or modified work schedules.” Id....