                Case: 17-12395       Date Filed: 06/20/2018       Page: 1 of 9


                                                                      [DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 17-12395
                               ________________________

                          D.C. Docket No. 1:13-cv-03827-TWT

CAROLE SOLLOWAY,

                                                                           Plaintiff-Appellant,

                                             versus

JAY CLAYTON,
as Chairman of the Securities and Exchange Commission,

                                                                         Defendant-Appellee.


                               ________________________

                      Appeal from the United States District Court
                         for the Northern District of Georgia
                           _________________________

                                       (June 20, 2018)

Before NEWSOM and HULL, Circuit Judges, and ROYAL, * District Judge.

PER CURIAM:


   *
      Honorable C. Ashley Royal, United States District Judge for the Middle District of Georgia,
sitting by designation.
               Case: 17-12395     Date Filed: 06/20/2018    Page: 2 of 9


      Plaintiff/Appellant Carole Solloway sued her employer, Defendant/Appellee

the Securities and Exchange Commission (“SEC”), under the Rehabilitation Act,

29 U.S.C. § 701, et seq., alleging disability discrimination and retaliation. The

district court granted summary judgment for the SEC. Solloway appeals. After

careful consideration, we AFFIRM.

                                  BACKGROUND

      The district court recited at length the facts of this case in its order granting

the SEC’s motion for summary judgment; we only summarize the relevant

background.

      Carole Solloway is a staff accountant in the SEC’s Atlanta Regional Office

(“ARO”) who suffers from post-traumatic stress disorder (“PTSD”), depression,

and anxiety as a result of a brutal kidnapping and sexual assault in 1997. In 2011,

Solloway learned the SEC had disciplined her immediate supervisor, ARO

Employee, for watching pornography at work, which triggered her PTSD, anxiety,

and depression.1 Although ARO Employee stepped down from his supervisory

position, he remained employed as a staff accountant at the ARO. Being in ARO

Employee’s presence, indeed even the thought of being in his presence, caused



1
  The parties identify Solloway’s former supervisor as ARO Employee. ARO Employee was not
involved in Solloway’s 1997 kidnapping and sexual assault. Solloway learned of ARO
Employee’s misconduct by reading the SEC’s Office of Inspector General’s report of the
incident.
                                           2
               Case: 17-12395      Date Filed: 06/20/2018     Page: 3 of 9


Solloway to suffer from symptoms of her conditions such as diarrhea,

uncontrollable shaking, inability to sleep, and inability to focus.

       From 2011 to 2013, Solloway requested and received various forms of

teleworking to accommodate her need to avoid ARO Employee and thus alleviate

the symptoms of her PTSD. Shortly after her symptoms first manifested, Solloway

sought and was granted a two-day a week recurring telework schedule as

authorized under the collective bargaining agreement (“CBA”) between the SEC

and the National Treasury Employees Union, of which Solloway is a member. 2 A

few months later, Solloway submitted a formal disability accommodation request

to telework full-time and receive other assurances she could avoid ARO Employee,

including advance notice of ARO Employee’s schedule, the ability to decline any

projects he worked on, and to be provided an alternative liaison when she would

otherwise be required to contact ARO Employee.

       While her request for accommodation was pending, the SEC moved

Solloway’s office further away from ARO Employee’s office, allowed Solloway to

telework five days of every two-week period, and required ARO Employee to

telework the opposite five days. In December 2011, the SEC denied Solloway’s

specific request for full-time telework finding there was insufficient evidence to


2
 The CBA authorized employees to telework on a recurring basis for a maximum of two days a
week and on a short-term ad hoc basis up to five days a week in exceptional circumstances.


                                             3
              Case: 17-12395     Date Filed: 06/20/2018   Page: 4 of 9


establish Solloway was disabled, and, even assuming she was disabled, her

requested accommodation posed an undue hardship on the SEC. However, the

SEC allowed Solloway to continue teleworking two days a week and required

ARO Employee to telework the opposite two days. On their overlapping day, the

SEC allowed Solloway to avoid ARO Employee either by taking leave or using ad

hoc telework when he was in the office. The SEC allowed this arrangement to

continue for two years during which Solloway was able to avoid ARO Employee

and successfully perform her job.

      In April 2013, Solloway again requested an accommodation for full-time

telework that would allow her to completely avoid ARO Employee and alleviate

her fear she would encounter him at a required event. While this request was

pending, the SEC allowed Solloway to telework full-time. In May, the SEC denied

Solloway’s second request as unduly burdensome and offered Solloway a non-

competitive reassignment to an office in another city. Solloway rejected this offer.

In September 2013, the SEC found Solloway was unable to perform the essential

functions of her job, so it issued her a Notice of Proposed Removal and placed her

on paid administrative leave with full benefits.

      From September 2013, until March 2014, Solloway remained on paid

administrative leave with full benefits. After the SEC announced a new CBA that

permitted telework up to five days a week in July 2013, the SEC notified Solloway


                                          4
              Case: 17-12395    Date Filed: 06/20/2018   Page: 5 of 9


of the change and offered her a full-time telework schedule in February 2014. In

March 2014, Solloway resumed working in a full-time telework capacity.

      Solloway filed suit claiming the SEC discriminated and retaliated against her

in violation of the Rehabilitation Act by failing to reasonably accommodate her

disability. The district court granted summary judgment for the SEC. Solloway

appeals.

                                 DISCUSSION

      We review a grant of summary judgment de novo, considering all evidence

and reasonable inferences drawn therefrom in the light most favorable to the non-

moving party. OSI, Inc. v. United States, 525 F.3d 1294, 1297 (11th Cir. 2008).

Summary judgment is proper “if the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). “The mere existence of a scintilla of evidence in support of

the plaintiff's position will be insufficient; there must be evidence on which the

jury could reasonably find for the plaintiff.” Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 252 (1986).

I. Failure to Accommodate Claim

      “The Rehabilitation Act prohibits federal agencies from discriminating in

employment against individuals with disabilities.” Ellis v. England, 432 F.3d 1321,

1326 (11th Cir. 2005) (citations omitted). “The standard for determining liability


                                        5
              Case: 17-12395     Date Filed: 06/20/2018   Page: 6 of 9


under the Rehabilitation Act is the same as that under the Americans with

Disabilities Act, 42 U.S.C. § 12101, et. seq. (“ADA”); thus, cases involving the

ADA are precedent for those involving the Rehabilitation Act.” Id.

       To establish a prima facie claim for failure to accommodate, Solloway must

show that (1) she is disabled; (2) she was a “qualified individual” at the relevant

time, meaning she could perform the essential functions of the job in question with

or without reasonable accommodations; and (3) she was discriminated against by

way of the defendant's failure to provide a reasonable accommodation. See Lucas

v. W.W. Grainger, Inc., 257 F.3d 1249, 1255 (11th Cir. 2001). An accommodation

is reasonable if it enables the employee to perform the essential functions of the

job. Id.

       Here, the district court correctly held there was no discrimination. The SEC

reasonably, and successfully, accommodated Solloway for two years. While her

specific accommodation requests were pending, the SEC accommodated Solloway

with either full-time or part-time telework. Although the SEC denied her specific

request for full-time telework, it not only allowed her to continue teleworking part-

time but also required ARO Employee to telework part-time on an alternate

schedule so that she would not encounter him. Thus, contrary to Solloway’s

argument, the SEC did provide her with more than the recurring two-day a week




                                         6
              Case: 17-12395     Date Filed: 06/20/2018   Page: 7 of 9


telework schedule authorized for all employees under the CBA—the SEC also

changed ARO Employee’s schedule to accommodate her.

      Solloway successfully performed her job with this accommodation for two

years, and no evidence reflects she encountered ARO Employee during this time.

In 2013, when Solloway requested an additional accommodation for full-time

telework to further alleviate her fear of encountering ARO Employee, she

essentially sought a guarantee that she would never encounter ARO Employee. To

require the SEC to be such guarantor is unreasonable.

      Additionally, Solloway eventually received her preferred accommodation of

full-time telework. Although the SEC placed Solloway on administrative leave for

six months before she was allowed to permanently telework full-time, she neither

lost her job nor stopped receiving her full pay and benefits. The SEC met its

obligation under the Rehabilitation Act to provide Solloway with a reasonable

accommodation. After all, “a qualified individual with a disability is not entitled to

the accommodation of her choice, but only to a reasonable accommodation.”

Stewart v. Happy Herman's Cheshire Bridge, Inc., 117 F.3d 1278, 1286 (11th Cir.

1997) (internal quotations and citation omitted).

II. Retaliation Claim

      The Rehabilitation Act incorporates the anti-retaliation provision from §

12203(a) of the ADA. 29 U.S.C. § 791(f). The ADA’s anti-retaliation provision is


                                          7
               Case: 17-12395    Date Filed: 06/20/2018    Page: 8 of 9


similar to Title VII's anti-retaliation provision, and the same analysis is used for

both. Stewart, 117 F.3d at 1287. Therefore, we assess retaliation claims under the

Rehabilitation Act using the same framework as Title VII retaliation claims. Ellis,

432 F.3d at 1326 (“The standard for determining liability under the Rehabilitation

Act is the same as that under the Americans with Disabilities Act, 42 U.S.C. §

12101, et. seq.”).

      To establish a prima facie case of retaliation, Solloway must show (1) she

engaged in a statutorily protected expression; (2) she suffered an adverse

employment action; and (3) there was a causal link between the adverse action and

her protected expression. Stewart, 117 F.3d at 1287. Once the plaintiff establishes

a prima facie case, the burden shifts to the employer to articulate a legitimate,

nondiscriminatory reason for the challenged action. Id. If the employer meets its

burden, “[t]he plaintiff must then demonstrate that it will be able to establish at

trial that the employer's proffered non-discriminatory reasons are a pretextual ruse

designed to mask retaliation.” Id.

      The district court correctly found Solloway failed to create a triable issue of

material fact as to retaliation. Solloway bases her retaliation claim on her failure to

accommodate claim. Solloway argues the Notice of Proposed Removal was illegal

retaliation directly caused by the SEC’s discriminatory failure to accommodate her.

However, as explained above, the SEC reasonably accommodated her. Thus,


                                          8
               Case: 17-12395      Date Filed: 06/20/2018        Page: 9 of 9


Solloway’s contention regarding retaliation “merely reclothes [her] ADA

discrimination claim, which we have already rejected, and it fares no better in this

garb.” Lucas, 257 F.3d at 1261. See also Stewart, 117 F.3d at 1288 (“[T]he acts

[plaintiff]   describes   relate   directly       to   her   ‘reasonable   accommodation’

discrimination claim, not her retaliation claim, and accordingly provide no basis

for denying summary judgment on this issue.”).

       Additionally, because Solloway failed to sufficiently brief the issues of

causation and pretext in her initial brief, she waived these issues on appeal.

“Parties must submit all issues on appeal in their initial briefs.” United States v.

Nealy, 232 F.3d 825, 830 (11th Cir. 2000) (citations omitted). “If an argument is

not fully briefed (let alone not presented at all) to the Circuit Court, evaluating its

merits would be improper both because the appellants may control the issues they

raise on appeal, and because the appellee would have no opportunity to respond to

it.” Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004).

“Indeed, evaluating an issue on the merits that has not been raised in the initial

brief would undermine the very adversarial nature of our appellate system.” Id.

Therefore, we will not address Solloway’s arguments on these issues, and we

affirm the district court’s decision.

                                    CONCLUSION

       For the foregoing reasons, the judgment of the district court is AFFIRMED.


                                              9
