Solomon v. Vilsack, No. 09-5319

• Decision Date: 21 December 2010
• Docket Number: No. 09-5319
• Citation: 628 F.3d 555,393 U.S.App.D.C. 327
• Parties: Linda SOLOMON, Appellant v. Thomas J. VILSACK, in his Official Capacity as Secretary of Agriculture, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

628 F.3d 555

393 U.S.App.D.C. 327

Linda SOLOMON, Appellant

v.Thomas J. VILSACK, in his Official Capacity as Secretary of Agriculture, Appellee.

No. 09-5319.

United States Court of Appeals, District of Columbia Circuit.

Argued Oct. 19, 2010.

Decided Dec. 21, 2010.

Appeal from the United States District Court for the District of Columbia (No. 1:07-cv-01590).

John F. Karl, Jr. argued the cause and filed the briefs for appellant.

Harry B. Roback, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Ronald C. Machen Jr., U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.

Les Alderman and David Wachtel were on the brief for amicus curiae Metropolitan Washington Employment Lawyers Association in support of appellant.

Before: GINSBURG, TATEL, and GARLAND, Circuit Judges.

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge:

This case involves the interaction of two statutory regimes designed to benefit and protect federal employees with disabilities: the Rehabilitation Act of 1973 and the disability retirement provisions of the Federal Employees' Retirement System Act of 1986. To prevail on a claim of disability discrimination under the Rehabilitation Act, plaintiffs must show that they could "perform the essential functions" of their jobs either "with or without reasonable accommodation." By contrast, disabled employees able to fulfill the duties of their positions with reasonable accommodation are ineligible for disability benefits from the Federal Employees Retirement System. Here the district court held that appellant's receipt of federal disability retirement benefits precluded her from claiming that her employer, the U.S. Department of Agriculture, violated the Rehabilitation Act by failing to accommodate her disability. We disagree. Guided by the Supreme Court's analysis in Cleveland v. Policy Management Systems Corp., 526 U.S. 795, 119 S.Ct. 1597, 143 L.Ed.2d 966 (1999), we conclude (1) that claims for federal disability retirement benefits and disability-discrimination claims under the Rehabilitation Act do not so inherently conflict as to justify presumptively barring recipients of such benefits from asserting Rehabilitation Act claims, and (2) that a reasonable jury could find that the statements appellant and her doctor made in support of her application for disability benefits are consistent with her current claim that she could have performed the essential functions of her position with reasonable accommodation. We thus hold that appellant'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. Accordingly, we vacate the district court's entry of summary judgment on those claims and remand for the court to consider in the first instance whether appellant has raised trial-worthy issues of material fact.

I.

Because this case comes to us on appeal from a grant of summary judgment, we present the facts in the light most favorable to appellant, the nonmoving party in the district court, drawing all reasonable inferences in her favor. See Pardo-Kronemann v. Donovan, 601 F.3d 599, 604 (D.C.Cir.2010).

Appellant Linda Solomon began working as a budget analyst at the U.S. Department of Agriculture ("Department") in 1997. Solomon v. Vilsack, 656 F.Supp.2d 55, 57 (D.D.C.2009). Solomon "has a long history of depression" and has also been diagnosed with agoraphobia, "an anxiety disorder characterized by the fear of being around other people." Id. at 57 & n. 3. In late 2003 and early 2004, Solomon experienced a number of personal hardships that exacerbated her condition. See id. at 57. Her mental health during this period " 'was often unpredictable,' " and she had " 'intermittent and sporadic' problems sleeping, concentrating, and focusing." Id. (quoting Pl.'s Statement of Material Facts in Dispute & Material Facts Omitted byDef. 2). She also missed a considerable amount of work during the first ten weeks of 2004, using more than 110 hours of leave, including 50 hours of leave without pay. Id. at 58.

Solomon contends that notwithstanding her declining mental health, she succeeded in performing her duties at the Department. Solomon Decl. ¶ 9. Indeed, she "received a superior performance rating in February 2004." Id. Since Solomon's depression made it difficult to maintain regular work hours, she would sometimes arrive at the office early, stay late, or work from home. Id. To block out distractions and help her concentrate, she also purchased and installed a privacy screen that covered the opening of her work cubicle. Id. ¶ 11. According to Solomon, her supervisor, Sylvia Booth, approved of both her working outside of regular office hours and her installation of the privacy screen. Id. ¶¶ 9, 11.

On March 2, 2004, Solomon emailed Booth, apologizing for her erratic leave and explaining that she was suffering from a relapse of her chronic depression. Booth responded that if Solomon believed that she would "need special accom [m]odations," she should provide medical documentation of her condition. Solomon then gave Booth a letter from her psychiatrist, Dr. Dennis Cozzens, stating that Solomon suffered from "chronic depression, anxiety and insomnia" and requesting that she be placed on "a flexible work schedule ... to assist her with her medical treatment." Solomon also asked for a different work space where she would have more room and would be less bothered by her coworkers. On April 6, Deborah Lawrence, another supervisor, sent Solomon a memorandum asking that she submit further "medical documentation" by April 16 to demonstrate "the existence of [her] medical condition and the necessity for the [requested] changes in duty location and hours of duty." Although Solomon failed to provide Lawrence with additional medical documentation by this deadline, she alleges that the Department was nonetheless "fully aware of [her] medical problems." Pl.'s Statement of Material Facts in Dispute & Material Facts Omitted by Def. ¶ 19.

According to Solomon, Lawrence ordered her to take down her privacy screen and barred her from working past 6:00 p.m., thus "rescind[ing] the informal accommodations" Booth had previously granted. Appellant's Opening Br. 8. Solomon's difficulties at work soon came to a head. Although Solomon had planned to work late on the evening of April 23, a supervisor prohibited her from working past 5:30 p.m. Upset, she never returned to work.

Cozzens sent the Department several letters about Solomon after she stopped working. Solomon, 656 F.Supp.2d at 58. On May 10, Cozzens informed the Department that Solomon's prognosis was "guarded." In a June 2 letter, he stated that although Solomon remained "unable to work due to the severity of her psychiatric symptoms," she might nonetheless be able to return to work in mid-July if afforded appropriate accommodations. Solomon also continued communicating with her supervisors even though she was no longer appearing for work. Id. On May 26, she sought permission "to telecommute on a part-time schedule." Her supervisors said no. She also requested advanced, paid sick leave. Although her supervisors again said no, they did allow her to participate in the Department's Voluntary Leave Transfer Program through which Solomon's co-workers donated 56 hours of sick leave. In addition, the Department granted Solomon over 1000 hours of leave without pay in 2004.

On August 30, Solomon submitted an application for disability retirement benefits through the Federal Employees Retirement System (FERS). The FERS statute provides that disability retirement benefits are available only to federal employees who have "complete[d] at least 18 months of civilian service" and have become "unable, because of disease or injury, to render useful and efficient service in [their] position." 5 U.S.C. § 8451(a)(1)(A)-(B). Under Office of Personnel Management (OPM) regulations, employees are eligible for the benefits only if accommodating their disabilities would be "unreasonable." 5 C.F.R. § 844.103(a)(4). An official FERS handbook clarifies that a " '[r]easonable accommodation' is any action that [an] agency would be obligated to take under the Rehabilitation Act," which protects federal employees from discrimination based on their disabilities. U.S. Office of Pers. Mgmt., CSRS and FERS Handbook for Personnel and Payroll Offices: Disability Retirement 16, 52 (1998); see also 29 U.S.C. § 791.

The FERS application that Solomon completed, however, nowhere directly inquired whether she could work with reasonable accommodations, such as modified work hours or working conditions. See 42 U.S.C. § 12111(9) (defining the term "reasonable accommodation"); see also 29 U.S.C. § 791(g) (providing that section 12111(9)'s definition applies to suits under the Rehabilitation Act); 5 C.F.R. § 844.102 (defining the term "accommodation" for purposes of the regulations governing FERS disability benefits). Instead, the application asked, "What accommodations have you requested from your agency?" to which Solomon responded, "A flexible work schedule, relocation of work station, advanced sick leave and entry into the leave donor program." The form next asked, "Has your agency been able to grant your request?"—a question Solomon answered by checking the box marked "no." Solomon also stated in her application that she "became disabled for [her] position" in May 2003 and that she had "been unable to work" since April 2004 because her medical condition was "in crisis ... [despite] continued treatment." In addition, Cozzens submitted a letter in support of Solomon's application asserting that "disability retirement [was] the only viable option in [her] case" in light of her severe depression.

OPM approved Solomon's application on December 16, and "she began receiving benefits (retroactive...