Mogenhan v. Napolitano

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 16, 2010 Decided July 27, 2010

No. 08-5457

ANN MARIE MOGENHAN,
APPELLANT

v.

JANET ANN NAPOLITANO, SECRETARY, DEPARTMENT OF
HOMELAND SECURITY,
APPELLEE

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.
 2

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
 3

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.
 4

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.
§ 2000(e); 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 (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. A dispute
about a material fact is not “genuine” unless “the evidence is
such that a reasonable jury could return a verdict for the

1
See Bryant v. Gates, 532 F.3d 888, 898 (D.C. Cir. 2008) (ruling
that a claim is forfeited on appeal if made only in a “conclusory”
manner because “[i]t is not enough merely to mention a possible
argument in the most skeletal way, leaving the court to do counsel’s
work” (internal quotation marks omitted)); N.Y. Rehab. Care Mgmt.,
LLC v. NLRB, 506 F.3d 1070, 1076 (D.C. Cir. 2007).
 5

nonmoving party.” Anderson, 477 U.S. at 248. 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.
 6

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 (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; 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
(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.

2
See 42 U.S.C. § 2000e-2(a) (making it unlawful “to discriminate
against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual’s
race, color, religion, sex, or national origin”); id. § 2000e-3(a) (barring
“discriminat[ion]” against an employee “because he has made a charge
. . . under this subchapter”).
 7

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 U.S. at 68 (internal quotation marks omitted). Two of
Mogenhan’s proffers -- perhaps alone but certainly in
combination -- suffice to require us to reverse the district court’s
grant of summary judgment.

First, Mogenhan’s affidavit states that on August 27, 1992
-- twenty days after she sought EEO counseling regarding her
complaint of disability and gender discrimination -- Mogenhan’s
supervisor posted her EEO complaint on the Secret Service
intranet, where her fellow employees could and did access it.
He did this, she said, “to ostracize me with other agency
employees and label me as a ‘troublemaker.’” Mogenhan Aff.
at 5 (Dec. 1, 2004). The government offered no contrary
explanation for the supervisor’s behavior, nor does it address the
point on appeal. In such circumstances, a jury could believe that
broadcasting an EEO complaint would have such an effect --
and so chill a reasonable employee from further protected
activity.

Second, Mogenhan states that less than one month after her
supervisor published her complaint to her colleagues, he
increased her workload to five to six times that of other
employees, indicating that he was “doing so ‘to keep me too
busy to file complaints.’” Id. A reasonable employee might
well be dissuaded from filing an EEO complaint if she thought
 8

her employer would retaliate by burying her in work. See
Mayers v. Laborers’ Health & Safety Fund of N. Am., 478 F.3d
364, 369 (D.C. Cir. 2007) (noting that, ordinarily, “increas[ing
an employee’s] workload and tighten[ing] her deadlines in
retaliation for her seeking a reasonable accommodation . . .
might suffice to defeat summary judgment on a retaliation
claim”). Burlington Northern requires no more than that to
establish a materially adverse action.3

Because the district court granted summary judgment on the
ground that Mogenhan failed to raise a genuine issue as to
whether the retaliation she alleged was “materially adverse,” and
because she did raise such a genuine issue, we reverse the
dismissal of her retaliation claim.

3
In her appellate briefs, Mogenhan asserts that the district court
also wrongly dismissed a third retaliatory act as not “materially
adverse”: her score of 280 on her July 1992 appraisal. Mogenhan
contends that “a fact-finder could reasonably conclude that declining
performance appraisals would deter a reasonable employee from
engaging in protected EEO activity.” Appellant’s Br. 21 (emphasis
added). But Mogenhan’s July 1992 score did not represent a decline;
it was actually 10 points higher than her previous score. Although
Mogenhan responds that she had received a score of 300 on an earlier
1991 appraisal, her score had gone down to 270 by the time of her
January 1992 appraisal -- more than a month before she filed her EEO
complaint on February 28, 1992. At oral argument, Mogenhan
contended for the first time that it was not the score, but rather her
supervisor’s written comments on the appraisal form, that constituted
the materially adverse retaliatory act. Oral Arg. Recording at 5:09-
13:21. When “first offered at oral argument,” however, such a
contention simply “comes too late” for our consideration. Klamath
Water Users Ass’n v. FERC, 534 F.3d 735, 740 n.3 (D.C. Cir. 2008)
(internal quotation marks omitted); see Ark Las Vegas Rest. Corp. v.
NLRB, 334 F.3d 99, 108 n.4 (D.C. Cir. 2003).
 9

B

In addition to prohibiting retaliation, the Rehabilitation Act
incorporates the ADA’s ban on discrimination against a
“qualified individual on the basis of disability.” 42 U.S.C.
§ 12112(a); see 29 U.S.C. § 794(a), (d). Such discrimination
includes “not making reasonable accommodations to the known
physical or mental limitations of an otherwise qualified
individual with a disability who is an . . . employee.” 42 U.S.C.
§ 12112(b)(5)(A). The district court rejected Mogenhan’s
failure-to-accommodate claim on the ground that she had not
established there was a genuine issue that her heat-induced
migraines rendered her disabled within the meaning of the ADA.
Alternately, the court found that there was no genuine dispute
that the Secret Service reasonably accommodated her disability.
We do not reach the court’s first ground because it was clearly
correct as to the second.

Mogenhan does not deny that the Secret Service eventually
accommodated her disability by moving her to an air-
conditioned office. Nor does she dispute that the Service acted
reasonably in attempting alternatives before settling on the
office move. See Appellant’s Reply Br. 9-10. Indeed, her first
request to her supervisor was simply “to cool the area off . . . in
any manner that he could.” Mogenhan Tr. at 74. And as both
Mogenhan and the government agree, employers and employees
may need to engage in an “interactive process” in order to
identify and implement a workable accommodation.
Appellant’s Reply Br. 9-10; Appellee’s Br. 22.4

4
See also 29 C.F.R. § 1630.2(o)(3) (EEOC regulation) (“To
determine the appropriate reasonable accommodation it may be
necessary for the covered entity to initiate an informal, interactive
process with the qualified individual with a disability in need of the
accommodation. This process should identify the precise limitations
 10

In this case, the interactive process began with Mogenhan’s
pre-employment request that the Secret Service accommodate
her headaches by allowing her, as needed, to step outside for
fresh air or go out on workers’ compensation. The Service
agreed. At a later point, she asked that her workspace be cooled.
Aware that both heat and poor ventilation could trigger her
migraines, the Service commissioned a pair of air quality
studies, then implemented the studies’ recommendations to
increase ventilation, then installed large fans, and finally moved
her to an air-conditioned office. During all of that time, the
Service continued to permit her to take time off on workers’
compensation.

Mogenhan does not dispute the reasonableness of the
intermediate steps undertaken by the Secret Service in response
to her request for an accommodation. Oral Arg. Recording at
18:02-18:37. Instead, she argues that they proved ineffective
and that it took too long to finally reach an effective
accommodation. Id. As we have previously suggested, there
are certainly circumstances in which a “long-delayed
accommodation could be considered” unreasonable and hence
“actionable under the ADA.” Mayers, 478 F.3d at 368
(“doubt[ing] that a three-year delay in accommodating a
plaintiff’s disability is not actionable”); Selenke v. Med. Imaging
of Colo., 248 F.3d 1249, 1262 (10th Cir. 2001) (noting that “a
few courts have concluded that an employer’s delay in providing
reasonable accommodation may violate the ADA”); Jay v.
Intermet Wagner Inc., 233 F.3d 1014, 1017 (7th Cir. 2000)
(holding that, “[w]hile unreasonable delay in providing an
accommodation can provide evidence of discrimination,” the
defendant’s delay was not unreasonable).

resulting from the disability and potential reasonable accommodations
that could overcome those limitations.”).
 11

This case, however, does not present such circumstances.
See Selenke, 248 F.3d at 1262 (holding that delay in
implementing a final accommodation for an employee’s sinus
problems did not constitute a failure to reasonably accommodate
where the employer hired a consulting firm to conduct air-flow
testing, followed its recommendations, ultimately made the
changes the employee requested, and never denied the
employee’s requests for leave). Mogenhan cannot even begin
to establish that the interactive process took too long, because
she submitted no evidence as to when she first requested that the
Service cool her workspace. Indeed, when asked about this at
oral argument, Mogenhan’s counsel conceded: “She doesn’t
give a date.” Oral Arg. Recording at 16:28. Nor does the record
reveal when an important intermediate step, the installation of
the large fans, took place. Both Mogenhan and her supervisor
testified that they did not know when that happened. Mogenhan
Tr. at 80; Machado Dep. at 38. Under these circumstances, no
reasonable jury could conclude that the Secret Service failed to
“mak[e] reasonable accommodations” to her disability. 42
U.S.C. § 12112(b)(5)(A).

III

For the foregoing reasons, we vacate the opinion of the
district court, reverse its grant of summary judgment on
Mogenhan’s claim that the Secret Service unlawfully retaliated
against her, and affirm its grant of summary judgment on her
claim that the Service failed to reasonably accommodate her
disability.

So ordered.