UNI'I`ED STATES DISTRICT COURT
FOR 'I`HE DISTRIC'I` OF COLUMBIA

JANET L. SCHMIDT,
Piainrirr,
v- y civil Acci@n No. 07-2216 (JMF)

HILDA L. SOLIS, Secretary,
U.S. Dept. of Labor, REDACTED

Defendant.

MEMORANDUM OPINION

This is an action by Janet L. Schmidt ("Schmidt") against the Secretary of Labor,‘
premised primarily on the Rehabilitation Act of 1973, 29 U.S.C. §§ 791 et seq.z Before
me at this time is defendant’s Motion for Summary Judgment ("M0t.") [#25].
I. INTRODUCTION

Schmidt is an attomey who was employed with the Department of Labor from
February 1994 to July 20()8,3 with her final position being as a Pension Law Specialist in
one of the Labor divisions Plaintiff’ s Response to Defendant’s Statement of Undisputed

Material Facts ("Response") [#39-2] at 11 l."

‘ The defendant is the Secretary of Labor, who is sued in her official capacity. I will refer
to the defendant as "Labor."

2 All references to the United States Code or the Code of F ederal Regulations are to the
electronic versions in Westlaw or Lexis.

3 The last day of work for the defendant was in 2006, but she was retired as disabled in
2008. §:§Response at 1111 l, 14.

" Citations to the Response are to those facts that are not disputed

ln March 2002, Schmidt’s then-supervisor, Emmet "Fil" Williams, granted her an
accommodation that permitted her to work from her home on a full-time, flexible
schedule. Response at 11 16. Unlike the traditional "nine to f`iver" who is expected to be at
the work site at a particular time and to remain there, doing her work, until quitting time,
Schmidt pieced together an eight-hour day from her home and worked when she could,
irrespective of time of day. §

Beginning in May 2004, Schmidt’s new supervisor, Eric Raps, began a process of
re-evaluating the accommodation that Williams had allowed. I_cL at 11 33. In her claim,
Schmidt attacks that process and the conclusions Raps made as violative of her privacy
and as unreasonably delayed. Complaint [#l], Count I, 1111 46-47. She also charges that it
caused her to lose compensation to which she was entitled. I_d_;

Labor, however, seeks summary judgment on the basis that Schmidt is not even a

5 While Labor did not reply to plaintiff’ s statement of genuine issues with specif`icity,
there is no indication that the statements concerning the general facts of plaintif`f’ s
medical condition are contested.

6 The details of plaintiff` s medical condition will be redacted in the public filing of this
Memorandum Opinion.

qualified individual who can complain about a violation of the Rehabilitation Act; in the
alternative, Labor argues that if she could make such a complaint, the process that Raps
started and completed was fair, and was actually obstructed by Schmidt’s actions. Mot, at
4-5. Moreover, Labor argues that the accommodation Raps ultimately gave her was
reasonable as a matter of law, in that no jury could find it unreasonable.l Mot. at 39-40.

II. WHETHER PLAIN'I`IFF’S REQUESTED ACCOMMODATION WAS
REASONABLE IS AN ISSUE OF MA'I`ERIAL FACT

ln Breen v. Department of Transportation, 282 F.3d 839 (D,C. Cir. 2002), the

court of appeals explained the protection afforded disabled federal employees as follows:

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). 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
[ADA]." 29 U.S.C. § 794(d). The ADA, in turn, bars
discrimination against a "qualified individual with a
disability . . . in regard to . . . the . . . discharge of
employees . , . and other terrns, conditions, and privileges
ofemployment." 42 U.S.C. § 121 l2(a). A "qualified
individual with a disability" is 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."
Ld_. § l2l ll(8); se_e 29 C.F.R. § l6l4.203(a)(6) (EEOC
Rehabilitation Act regulation). 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.l994). The ADA further defines the term "reasonable
accommodation" to include "job restructuring [and] part-

 

7 Labor also argues that Schmidt’s retirement on disability precludes her Rehabilitation
Act claim, but I will allow supplemental briefing on that issue. §§ infra. Additionally, I
will grant summary judgment to defendant on plaintiff’ s Title VII retaliation claim.

3

time or modified work schedules." 42 U.S.C. § l2l l l(9);
s_e_c_: 29 C.F.R. § 1614.203(0)(2).

I_d. at 841 (footnote omitted).

The EEOC regulations indicate that the Federal Government is to be a "model
employer of individuals with disabilities" (29 C.F.R. § l614.203(a)), and, as the decision
in §r_e@ explains in the passage above, the standards applied under the ADA are to be
applied in the interpretation of the Rehabilitation Act._S_e_e_ 29 C,F.R. § l6l4.203(b). lt
would therefore follow that a person can be a qualified individual, permitted to complain
of a violation of the Rehabilitation Act, if she can be reasonably accommodated by a part-
time or modified work schedule, as Schmidt was. Labor, however, insists that a modified
work schedule is one thing, but that Schmidt’s insistence that she be allowed to work at
home at whatever time of the day she saw fit cannot possibly mean that she was
nevertheless qualified for her position. Mot. at 39-40. Surely, Labor says, an employer
does not have to tolerate "an inability to maintain any predictable work schedule." §§ at
40. To the contrary, Labor argues, "an employee’s inability to maintain a regular and
predictable work schedule (an essential element of any government job) places that
employee outside the accommodation provisions of the Rehabilitation Act." I_d_. at 39

(citing Carr v. Reno 23 F.3d 525, 530 (D.C. Cir.l994)). Oddly, Labor makes this

 

argument even though Williams approved a work schedule that permitted Schmidt to
work nights, weekends, and irregular hours on any given day in order to cobble together
eighty hours per pay period, although it was impossible to predict at the beginning of the
week what hours Schmidt would work that week. I_<L at l5.

ln any event, and despite Labor’s argument, the inability to maintain a regular and

predictable work schedule does not in itself disqualify a federal employee from seeking

an irregular and unpredictable work schedule as an accommodation if such a schedule is
otherwise a reasonable accommodation. lt must be remembered that, while no one could
predict at the beginning of a pay period how many hours Schmidt would work, she was
required to work eighty hours in that pay period, and to take leave for any hours she could
not work due to her illness. In that sense, she was treated like every other employee; no
one can predict when they will get sick at the beginning of the pay period, and they must
take sick leave if they do. The only difference between Schmidt and other employees is
that they are expected at their work station at their starting time and are permitted to leave
at their quitting time. Schmidt was not so fortunate, but, while she may have started
earlier, worked sporadically during the day when she could, and then worked in the
evenings and weekends to make up the difference she was still required to work eighty
hours in the pay period and to take sick leave if she could not.

lf Schmidt’s working at home at unusual hours disqualified her from seeking an
accommodation to do just that, then what 1 would call the "nine to fiver" paradigm would
become the exclusive way in which federal employees may work, 'l`hat, in turn, would
require reading the Rehabilitation Act as not including any obligation to consider working
at home and flexible time, which would be inconsistent with the regulatory requirement
that the federal goveminent be a model employer of the disabled, compelled to consider
"job restructuring and part-time or modified work schedules." §Ln, 282 F.3d at 841
(quoting the ADA, 42 U.S.C. § 12111(9)). The question is whether the accommodation
Schmidt sought is reasonable, not whether her inability to maintain a predictable and

regular work schedule in itself disqualifies her from seeking that accommodation,

lt is in this sense that this case is not like _@;r_, 23 F.3d 525, to which Labor
equates it. To the contrary, Breen and Langon v. Dei@rtment of Health & Human
Services, 959 F.2d 1053 (D.C. Cir. l992) are the controlling precedents.

In _C_a_r_r, the plaintiff, a coding clerk in the United States Attorney’s Office who
suffered from dizziness and nausea that forced her to miss work without notice, wanted
an "open-ended ‘work when able’ schedule." L, 23 F.3d at 53 l. However, she had to
complete her work every day by 4 p.m. if the United States Attomey’s Office was to
fulfill an obligation it had. id at 529-30. That inexorable deadline compelled the
conclusion that the accommodation she proposed-work when she could~would not
have permitted her to perform the essential functions of her job.

The court of appeals distinguished _Qi_r;_r in I_B_r_e_e_n, a case in which the plaintiff
disputed the claim that there was a similar deadline that would, as a matter of law,
preclude the accommodation she sought for her psychiatric disorders, particularly her
obsessive-compulsive disorder. i, 282 F.3d at 843. Specifically, that
accommodation included allowing her to work an eighty-hour pay period, while also
allowing her to work past normal business hours in a flexible schedule (i.e., working nine
hours every day in exchange for one day off per pay period). § at 840.

The court of appeals indicated that the case was not controlled by (_I_ai;_r because
there was no claim of an inexorable daily deadline that had to be met, §§ at 843. The
court further concluded that plaintiff was not thereby disqualified from seeking the
accommodation she did. Ld_. On the contrary, by insisting that there was no such deadline,
the court held that plaintiff had created a genuine issue of material fact as to the

reasonableness of the accommodation she sought. lgl_.

In so concluding, the court of appeals indicated that "the precedent that is relevant

is not Carr but Langon v. D§pt. of Health and Human Servs., 959 F.2d 1053 (D.C. Cir.

l992)." § As the court explained, the plaintiff in _Igigg_ri_, stricken with multiple
sclerosis, sought to work at home, but the agency refused because it concluded that her
position did not lend itself to her working at home. When, however, plaintiff testified
and explained the reasons why she contested that conclusion, she created a genuine issue
as to whether she was a qualified individual who could do her job if she could be
accommodated by being permitted to work at home. l_d_. (citing _l£ng_o_n, 959 F.2d at

106 1 ).

For the purposes of this case, the crucial aspect of Qg_gqr_i and §e_e_ri_ is that they
reject any reading of _C_ar_r that would serve to automatically disqualify a disabled
individual from seeking an accommodation that includes working at home or at irregular
hours. Labor’s argument to the contrary therefore fails.

III. THE PARTIES MUST ADDRESS THE SIGNIFICANCE OF SOLOMON
V. VILSACK

The parties addressed the significance of plaintiff s disability retirement prior to
Solomon v. Vilsacl<, 628 F.3d 555 (D.C. Cir. 2010). ln that case, the court of appeals
held that "recipients of FERS disability benefits are not presumptively barred from
asserting Rehabilitation Act claims." g at 565.

Nevertheless, inquiry into the inconsistency between statements made in the
application for FERS disability benefits and a claim that a person was qualified for
employment if reasonably accommodated is necessary. I_CL at 565-66. To provide the
parties a fair opportunity to address that most significant decision in the context of this

case, 1 will therefore deny without prejudice Labor’s motion insofar as it is premised on

its claim that a reasonable person would have to conclude that Labor complied with the
Rehabilitation Act, and order it to supplement its motion with a memorandum of law
addressed to the significance of the Solomon case. Plaintiff will be permitted an
opportunity to respond, and Labor to reply.

IV. PLAINTIFF’S TITLE VII CLAIM MUST BE DISMISSED

Plaintiff claims that Labor’s actions with reference to her request for
accommodation were done in retaliation for her engaging in protected activity under Title
VII ofthe Civil Rights Act, 42 U.S.C. § 2000e-l6, when she (a) supported a co-worker’s
union grievance, which alleged discrimination, in 1998; (b) filed her own EEO complaint
of discrimination and retaliation in 2000; and (c) "engag[ed] in protected EEO activity
repeatedly since then." Complaint, Count VI, 11 8 l. As to the latter allegation, she does
not specify the activity in which she engaged, nor when she engaged in it.

Raps, the decision-maker, however, testified that he had no knowledge of any of
Schmidt’s prior Title VII activity. Response at 11 124. While Schmidt pointed to two
instances of engaging in activity claimed to be protected by Title VII (I_<L at 11 l22), she
produced no evidence whatsoever that Raps was aware of her Title VII activity, or that
his explanation for the decisions he made was pretextual, and that the real reason was her
prior Title VII activity. She was obliged to produce sufficient evidence for a reasonable
jury to find that Raps’ actions were a pretext for retaliatory action. S_e_e Brady v. Office of
Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008). She produced none, however, and
conceded that she had produced no evidence that Raps was aware of her Title VII activity.

Response at 11 123. Labor is therefore entitled to summary judgment on this claim. §e_e,_

Calhoun v. Johnson, 09~CV-5315, __ F.3d _~, 2011 WL 192497, *2 (D. C. Cir. 2011);
Pardo-Kronemann v. Donovan, 601 F.3d 599, 605 (D.C. Cir. 2010).
V. CONCLUSION

Labor is not entitled to summary judgment on the grounds that Schmidt’s
requested accommodations are unreasonable as a matter of law, barring her from being a
"qualified individua1" under the Rehabilitation Act, but it is entitled to summary
judgment on her Title V1Iclaim. The remainder of Labor’s motion for summary
judgment is denied without prejudice pending the briefing 1 have ordered.

A separate Order accompanies this Memorandum Opinion.

Diglta||y signed by John M. Faccio|a
0 n DN: c=US, st=DC, ou=District of
° Co|umbla,

ema1|=John_M._Facciola@dcd.uscou
rts.gov, Q=U.S. District Court, District

C
F a C C l 0 | a ofCo|umbia, cn=John M. Facclo|a
Date.'.ZO11.03.01 10:18:28 -05'00'
JOHN M. FACCIOLA
U.S. MAGIS'I`RATE JUDGE

