United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 19, 2010 Decided December 21, 2010
No. 09-5319
LINDA SOLOMON,
APPELLANT
v.
THOMAS J. VILSACK, IN HIS OFFICIAL CAPACITY AS SECRETARY
OF AGRICULTURE,
APPELLEE
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 was on the brief for amicus curiae
Metropolitan Washington Employment Lawyers Association
in support of appellant.
2
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 (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
3
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 by Def. 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
4
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 co-
workers. 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
5
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
6
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.
7
OPM approved Solomon’s application on December 16,
and “she began receiving benefits (retroactive to the date of
application) in January 2005.” Solomon, 656 F. Supp. 2d at
58. Since then, she has not worked, and her doctor “has
continued to represent [to OPM] that she cannot return to
work because of her disability.” Id. at 58–59.
On September 7, 2007, Solomon filed suit against the
Secretary of Agriculture in the U.S. District Court for the
District of Columbia, alleging that the Secretary violated her
rights under the Rehabilitation Act by refusing to provide
reasonable accommodations for her disability. See 29 U.S.C.
§ 791(g); 42 U.S.C. § 12112(a), (b)(5). (Throughout this
opinion, we shall refer to this claim as Solomon’s
“accommodation claim.”) Among other things, she claimed
that by denying her requests for reasonable accommodations,
her supervisors effectively “forced [her] to apply for disability
retirement.” Compl. ¶ 17. In addition, Solomon alleged that
her supervisors unlawfully retaliated against her for engaging
in activities protected by Title VII of the Civil Rights Act of
1964 (“Title VII”), the Age Discrimination in Employment
Act of 1967 (ADEA), and the Rehabilitation Act. See 42
U.S.C. § 12203 (anti-retaliation provision of the Americans
with Disabilities Act of 1990, which applies to actions under
the Rehabilitation Act by virtue of 29 U.S.C. § 791(g));
Gomez-Perez v. Potter, 553 U.S. 474, 477 (2008) (holding
that a federal employee who is retaliated against based on the
filing of an age-discrimination complaint may assert a claim
under 29 U.S.C. § 633a(a), the federal-sector provision of the
ADEA); Forman v. Small, 271 F.3d 285, 297 (D.C. Cir. 2001)
(noting that Congress’s waiver of sovereign immunity in 42
U.S.C. § 2000e-16 for claims under Title VII includes claims
of retaliation). Although Solomon also alleged that her
supervisors discriminated against her based on age, her
8
counsel advised us at oral argument that she is no longer
pursuing that claim. See Oral Arg. Tr. at 13:12–20.
The Secretary moved for summary judgment on all
claims. Ruling on that motion, the district court began with
the “threshold” question of whether a recipient of FERS
disability benefits is barred from asserting a claim of
disability discrimination under the Rehabilitation Act, which
forbids federal agencies from engaging in any discrimination
prohibited by the Americans with Disabilities Act of 1990
(ADA). Solomon, 656 F. Supp. 2d at 59; see also 29 U.S.C. §
791(g). The ADA’s list of prohibited forms of discrimination
includes failure to make “reasonable accommodations to the
known physical or mental limitations of an otherwise
qualified individual with a disability who is an applicant or
employee, unless [the employer] can demonstrate that the
accommodation would impose an undue hardship on the
operation of [its] business.” 42 U.S.C. § 12112(b)(5)(A). To
be a “qualified individual” entitled to protection from
discrimination under the ADA, an individual must be able to
perform, with or without reasonable accommodation, “the
essential functions of the employment position that such
individual holds or desires.” 42 U.S.C. § 12111(8). Thus, to
prevail on her accommodation claim, Solomon must show
that she could have performed the essential functions of her
job as a budget analyst with reasonable accommodation. See
Breen v. Dep’t of Transp., 282 F.3d 839, 841 (D.C. Cir.
2002). As explained above, however, OPM regulations
provide that individuals able to fulfill the duties of their
positions with reasonable accommodation are ineligible for
FERS disability benefits. See 5 C.F.R. § 844.103(a)(4).
The district court concluded that Solomon’s claim for
FERS disability benefits and her contention that she had been
discriminated against in violation of the Rehabilitation Act
9
were “mutually exclusive.” Solomon, 656 F. Supp. 2d at 62.
It thus ruled that Solomon’s application for and receipt of
FERS disability benefits “precluded” her accommodation
claim. Id. at 59. Relying on similar logic, the district court
also barred Solomon from pursuing her claim that she had
been retaliated against for engaging in activities protected by
Title VII. Noting that her Title VII claim rested on the
allegation that her supervisors retaliated against her by taking
the “ ‘materially adverse’ ” action of denying her
accommodation requests, the court reasoned that the
supervisors’ actions could not have been “adverse” if no
reasonable accommodations could have been made for
Solomon’s disability. Id. at 62 (quoting Burlington N. &
Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)). Since
individuals whose disabilities can be reasonably
accommodated are ineligible for FERS disability benefits, the
court held, Solomon’s receipt of such benefits “precluded”
her Title VII retaliation claim. Id. at 57, 62. Without
separately addressing Solomon’s distinct retaliation claims
under the ADEA and the Rehabilitation Act, the district court
granted the Secretary’s motion for summary judgment in its
entirety. Id. at 63.
Solomon now appeals, reiterating the arguments she
made in the district court. Since the district court relied on
the same rationale in holding that Solomon’s accommodation
and retaliation claims were barred—i.e., that recipients of
FERS disability benefits are precluded from later claiming
they could have performed the essential functions of their
position with reasonable accommodation—our analysis will
focus primarily on the question of whether Solomon’s
accommodation claim is foreclosed. If the district court erred
in barring Solomon’s accommodation claim, its holding with
respect to her retaliation claims must fail as well.
10
II.
Solomon argues that the district court adopted a “per se
rule” that bars recipients of FERS disability benefits from
asserting disability-discrimination claims under the
Rehabilitation Act. Appellant’s Opening Br. 22. She
contends that our review of this legal issue is de novo. The
Secretary, arguing that the district court grounded its decision
on the equitable doctrine of judicial estoppel, contends that
our review is limited to determining whether the district court
abused its discretion in estopping Solomon’s claims. See New
Hampshire v. Maine, 532 U.S. 742, 749–50 (2001)
(explaining that judicial estoppel is an equitable doctrine that
seeks to “protect the integrity of the judicial process” by
prohibiting a party who has successfully maintained a certain
position in an adjudicative proceeding from assuming a
contrary position in a subsequent proceeding) (internal
quotation marks omitted); see also Moses v. Howard Univ.
Hosp., 606 F.3d 789, 797 (D.C. Cir. 2010) (noting that the
circuits are split on the issue of whether district court
applications of judicial estoppel are reviewed de novo or for
abuse of discretion, but taking no position on the issue). We
agree with Solomon that our review is de novo.
In Cleveland v. Policy Management Systems Corp., the
Supreme Court addressed a question closely resembling the
one we face here—whether an individual who received Social
Security Disability Insurance (SSDI) benefits was barred from
pursuing an ADA claim based on her employer’s failure to
accommodate her disability. In doing so, the Court did not
expressly rely on the doctrine of judicial estoppel. Although
the Secretary nonetheless insists that the Court implicitly
“appl[ied] the judicial estoppel doctrine,” Oral Arg. Tr. at
30:12–17, and although some commentators seem to agree,
see 18 James Wm. Moore, Moore’s Federal Practice §
134.30, at 134-63 to 134-64 & nn.4.1–4.2 (3d ed. 2000); 18B
11
Charles Alan Wright, Arthur R. Miller & Edward H. Cooper,
Federal Practice and Procedure § 4477.1 (2d ed. 2002), we
think it best to follow the Court’s analysis exactly as it is set
forth in Cleveland. That opinion requires us to resolve two
legal questions as to which our review is plenary. See United
States v. Berry, 618 F.3d 13, 16 (D.C. Cir. 2010) (noting that
“questions of law” are reviewed de novo). First, do claims for
FERS disability benefits and disability-discrimination claims
under the Rehabilitation Act so inherently conflict that we
should presumptively bar recipients of FERS disability
benefits from asserting Rehabilitation Act claims? Second,
even if no inherent conflict between the two claims exists, is
the Secretary nonetheless entitled to summary judgment
because Solomon has failed to reconcile her statements in her
FERS application with her current claim that she could have
worked with reasonable accommodations? In the following
pages, we summarize the facts of Cleveland and then consider
each of these questions in turn.
Carolyn Cleveland applied for and received SSDI
benefits, for which an individual is eligible only if she suffers
from “a disability so severe that she is ‘unable to do [her]
previous work’ and ‘cannot . . . engage in any other kind of
substantial gainful work which exists in the national
economy.’ ” 526 U.S. at 797 (quoting 42 U.S.C. §
423(d)(2)(A)). Much like Solomon in her application for
FERS benefits, Cleveland represented in her SSDI application
that she was “unable to work” due to her disability. Id. at 798
(internal quotation marks omitted). She then brought suit
under the ADA, claiming that her former employer had
discriminated against her based on her disability by failing to
afford her reasonable accommodation. The Fifth Circuit held
that applying for or receiving SSDI benefits “creates a
rebuttable presumption” that the claimant or recipient is
barred from pursuing a claim of disability discrimination
12
under the ADA. Cleveland v. Policy Mgmt. Sys. Corp., 120
F.3d 513, 518 (5th Cir. 1997), vacated, 526 U.S. 795 (1999).
Concluding that Cleveland failed to overcome that
presumption, the Fifth Circuit affirmed the district court’s
grant of summary judgment in favor of her employer. Id.
Although the Supreme Court rejected the Fifth Circuit’s
“special judicial presumption” that would ordinarily preclude
SSDI recipients from asserting ADA claims, it nonetheless
held that to survive summary judgment Cleveland had to
explain on remand how her statements in support of her SSDI
application were “consistent with her ADA claim that she
could ‘perform the essential functions’ of her previous job, at
least with ‘reasonable accommodation.’ ” Cleveland, 526
U.S. at 798, 802.
To reach this conclusion, the Court began its analysis by
asking whether a claim for SSDI benefits and an ADA claim
are so “inherently” inconsistent as to justify a “special
negative presumption” such as the one adopted by the Fifth
Circuit. Id. at 802. Examining the SSDI program in detail,
the Court concluded that there are “too many situations in
which an SSDI claim and an ADA claim can comfortably
exist side by side” to warrant such a presumption. Id. at 802–
03. Accordingly, we too begin our analysis by asking
whether there is such an “inherent[] conflict” between the
receipt of FERS disability benefits and the elements of a
discrimination claim under the Rehabilitation Act that we
should adopt a “special judicial presumption” that “would
ordinarily prevent a plaintiff like [Solomon] from successfully
asserting [a Rehabilitation Act] claim.” Id. at 802.
The district court began and ended its analysis with this
“threshold issue.” Solomon, 656 F. Supp. 2d at 59. Having
determined that an “ ‘inherent conflict’ ” does indeed exist, id.
at 60 (quoting Chinchillo v. Powell, 236 F. Supp. 2d 18, 27
13
(D.D.C. 2003)), the district court adopted what appears to be a
conclusive, irrebuttable presumption that recipients of FERS
disability benefits are “precluded” from asserting disability-
discrimination claims under the Rehabilitation Act, id. at 59.
In our view, however, disability-benefit and Rehabilitation
Act claims are not so inherently inconsistent as to justify any
sort of special presumption, whether rebuttable or
irrebuttable, against recipients of FERS disability benefits
who charge their employers with discrimination based on
failure to accommodate. True, unlike the SSDI program
considered in Cleveland, the OPM regulations governing
FERS “take the possibility of ‘reasonable accommodation’
into account.” Cleveland, 526 U.S. at 803. That is,
individuals whose disabilities can be reasonably
accommodated are ineligible for FERS disability benefits. 5
C.F.R. § 844.103(a)(4). In Cleveland, however, the Supreme
Court did not just compare the text of the ADA, the Social
Security Act, and their implementing regulations. Instead, it
considered how the SSDI program is implemented in practice,
emphasizing that the Social Security Administration never
asks applicants about “the possibility of reasonable
accommodation.” Cleveland, 526 U.S. at 803.
So too here. The FERS application forms nowhere
directly ask applicants whether they can perform the essential
functions of their positions with reasonable accommodations.
Standard Form 3112A, entitled “Applicant’s Statement of
Disability,” instead asks applicants to “[g]ive the approximate
date [they] became disabled for [their] position”; to describe
how their disabilities “interfere[] with [the] performance of
[their] duties, [their] attendance, or [their] conduct”; and to
explain “any other restrictions” that their disabilities impose
on their activities. The form also asks, “What
accommodations have you requested from your agency?” and
“Has your agency been able to grant your request?” Although
14
other parts of the FERS application packet do mention the
possibility of reasonable accommodation, those references
appear on forms completed by supervisors and other agency
officials rather than by applicants themselves. For example,
Standard Form 3112B, the “Supervisor’s Statement,” defines
the term “accommodation” and gives examples of various
“reasonable accommodation[s]” that may be offered to
disabled employees. The forms completed and signed by the
applicant contain no similar discussion of what constitutes a
“reasonable accommodation.” Indeed, only the agency, not
the applicant, is asked, “Has reasonable effort for
accommodation been made?” See OPM Standard Form
3112D: Agency Certification of Reassignment &
Accommodation Efforts.
In sum, the FERS application forms nowhere require
applicants to expressly represent that their disabilities cannot
be reasonably accommodated. Therefore, as the Merit
Systems Protection Board concluded in a decision addressing
the very issue raised in this case, an individual’s application
for and receipt of FERS disability benefits do not necessarily
constitute “an affirmation . . . that [her disability] could not be
accommodated.” Lamberson v. Dep’t of Veterans Affairs, 80
M.S.P.R. 648, 657 (MSPB 1999). Of course, the Board’s
decision is not binding on us, and Solomon does not argue
that we owe the decision any deference under cases such as
Chevron, U.S.A., Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837, 842–43 (1984), Skidmore v. Swift & Co.,
323 U.S. 134, 140 (1944), or Auer v. Robbins, 519 U.S. 452,
461 (1997). Nonetheless, for the reasons given above, we
agree with the Board that it would be inappropriate to
preclude an individual from asserting a disability
discrimination claim “merely because she either applied for or
is in receipt of . . . FERS disability benefits.” Lamberson, 80
M.S.P.R. at 658.
15
Like the Board, we believe that this conclusion accords
with “Congress’s intent that continuation of work with
accommodation [be] preferred over disability retirement.” Id.
This intent is evident in 5 U.S.C. § 8451(a)(2), which requires
an agency to consider reassigning an employee who applies
for disability retirement to another vacant position and
disqualifies an individual who declines a reasonable offer of
reassignment from receiving FERS disability benefits. Since
one of the forms of relief available under the Rehabilitation
Act is reinstatement, see 29 U.S.C. § 794a(a)(1); 42 U.S.C. §
2000e-5(g); Frye v. Aspin, 997 F.2d 426, 428 (8th Cir. 1993),
allowing recipients of FERS disability benefits to pursue
Rehabilitation Act claims comports with Congress’s
preference that disabled employees continue working with
accommodations rather than being nudged toward retirement.
See H.R. Rep. No. 96-1167, at 206 (1980) (“If the employee
is able to perform useful and efficient service in another
position and a vacancy exists, the employee must be
reassigned rather than retired.”), reprinted in 1980
U.S.C.C.A.N. 5526, 5651.
Refusing to create a presumption that recipients of FERS
disability benefits are precluded from asserting disability-
discrimination claims also furthers the Rehabilitation Act’s
objective of “ensur[ing] that the Federal Government plays a
leadership role in promoting the employment of individuals
with disabilities.” 29 U.S.C. § 701(b)(2). Individual lawsuits
under the Rehabilitation Act are one mechanism for ensuring
that the federal government stays faithful to this goal. Not
only do such suits offer the possibility of compensation and
other relief to individuals whose rights under the Act may
have been violated, but they also reveal shortcomings in how
federal agencies treat their disabled employees.
Presumptively closing the courthouse doors to recipients of
16
FERS disability benefits attempting to assert Rehabilitation
Act claims, however, “would force disabled individuals into
an ‘untenable’ choice between receiving immediate
subsistence benefits . . . or pursuing discrimination remedies.”
Swanks v. Wash. Metro. Area Transit Auth., 116 F.3d 582,
586 (D.C. Cir. 1997) (quoting Smith v. Dovenmuehle Mortg.,
Inc., 859 F. Supp. 1138, 1142 (N.D. Ill. 1994)). This
“choice”—hardly a choice at all for individuals without
independent means—is especially daunting because, except in
certain limited circumstances irrelevant here, former federal
employees have only one year from the date of their
separation to apply for FERS disability benefits. 5 C.F.R. §
844.201(a)(1). Since Rehabilitation Act suits often last far
longer than a year, individuals whose claims fail because their
disabilities could not have been reasonably accommodated
would likely find themselves time-barred from then applying
for disability retirement benefits. Were we to accept the
Secretary’s argument and require federal employees to choose
between immediate FERS benefits and uncertain
Rehabilitation Act remedies, many disabled employees might
well forgo meritorious Rehabilitation Act claims, thus
shielding from liability federal agencies that fail to abide by
their statutory duty to grant reasonable accommodations to
their disabled employees. See Swanks, 116 F.3d at 586.
Indeed, under the district court’s seemingly inflexible
holding, agencies could force employees to seek disability
retirement in an effort to escape their legal responsibility to
provide reasonable accommodations. That, Solomon claims,
is just what happened here. She alleges that she “was forced
to seek disability retirement” because her supervisors refused
to grant reasonable accommodations that would have
permitted her to perform the essential functions of her job.
Solomon Dep. Tr. at 147:1–2, 16–17 (Nov. 6, 2008); see also
Compl. ¶ 17. If Solomon’s allegation is true, the district
17
court’s decision would grant immunity to Solomon’s
employer precisely because it succeeded in forcing Solomon
to accept disability retirement benefits by denying her
accommodations to which she was legally entitled. Such a
holding, which conceals rather than reveals disability
discrimination, disserves the Rehabilitation Act’s purpose of
ensuring that the federal government functions as a “model
employer of individuals with disabilities.” 29 C.F.R. §
1614.203(a).
For all these reasons, we conclude that recipients of
FERS disability benefits are not presumptively barred from
asserting Rehabilitation Act claims. Under Cleveland,
however, our analysis cannot end there. Although the
Supreme Court refused to adopt a special negative
presumption that would generally bar SSDI recipients from
pursuing ADA claims, it did hold that Cleveland could not
“simply ignore the apparent contradiction” between her
statements to the Social Security Administration and the
elements of her ADA claim. Cleveland, 526 U.S. at 806. To
avoid summary judgment, the Court explained, Cleveland had
to reconcile this apparent discrepancy by providing an
“explanation . . . sufficient to warrant a reasonable juror’s
concluding that, assuming the truth of, or [Cleveland’s] good-
faith belief in, the earlier statement[s], [Cleveland] could
nonetheless ‘perform the essential functions’ of her job, with
or without ‘reasonable accommodation.’ ” Id. at 807.
Although the Supreme Court remanded for the district court
to hear additional arguments and receive further sworn
declarations on this issue, id., the record in this case is
sufficiently developed to allow us to determine whether
Solomon has adequately reconciled the statements she made
in her FERS application with her accommodation claim.
18
Solomon’s statements in her FERS application could
conflict with her accommodation claim in two ways. First,
the statements could contain factual assertions that contradict
essential elements of her claim. Second, even if no direct
factual inconsistency exists, her FERS application could
nonetheless be viewed as containing “context-related legal
conclusion[s]” that conflict with her accommodation claim.
Id. at 802.
Because the Secretary most strenuously argues that the
second type of inconsistency exists in this case, we begin
there. The Secretary contends that when considered “in the
context of an application for FERS disability benefits,” for
which an individual is eligible only if her disability cannot be
reasonably accommodated, Solomon’s August 2004
statements to OPM constitute representations that no
reasonable accommodation could have been made for her
disability. Appellee’s Br. 31. The Secretary’s argument
might have some force if there were evidence that Solomon
knew when she applied for FERS disability benefits that
individuals whose disabilities can be reasonably
accommodated are ineligible for such benefits. But the record
contains no such evidence. The application forms bearing
Solomon’s signature nowhere warn that disabled employees
able to work with reasonable accommodations are ineligible
for disability retirement, and the Secretary has pointed to no
evidence that Solomon was otherwise apprised of this
eligibility qualification. We thus have no basis for treating
Solomon’s statements in her FERS application as “context-
related legal conclusion[s]” that she was unable to work even
with reasonable accommodations. Cleveland, 526 U.S. at
802.
Turning to the other possible basis for a conflict, we
consider whether Solomon’s statements in her FERS
19
application are factually inconsistent with the elements of her
accommodation claim. Asked to describe how her disability
interfered with her job performance, Solomon responded that
she had been “unable to work” since April 2004 “because
[her] medical condition remain[ed] in crisis” despite
treatment. Solomon also acknowledged that she had been
“disabled for [her] position” since May 2003 and that her
employer had been unable to grant her requested
accommodations. According to Solomon, these statements
merely reflect the fact that she was unable to work, and thus
had no choice but to apply for disability retirement benefits,
because her supervisors not only revoked informal
accommodations that she had previously been granted—the
privacy screen and permission to work outside of normal
business hours—but also denied her requests for additional
accommodations. See Pl.’s Statement of Material Facts in
Dispute & Material Facts Omitted by Def. ¶ 66; Pl.’s Opp’n
to Def.’s Mot. for Summ. J. 14, 17; Solomon Dep. Tr. at
48:14–15, 146:19–149:18. The statements, Solomon insists,
do not amount to concessions that she would have been
unable to work in the spring and summer of 2004 even if her
supervisors had granted her accommodation requests.
We think Solomon has sufficiently reconciled any facial
tension that might exist between the statements in her FERS
application and her accommodation claim. Nowhere in
Solomon’s application did she directly discuss whether she
could have worked with reasonable accommodations, nor did
the application forms call for her to do so. Thus, her
statements that she “became disabled for [her] position” in
May 2003 and had been “unable to work” since April 2004
could be perfectly consistent with her current claim that she
could have fulfilled the essential duties of her position if
granted her requested accommodations. Solomon’s answer
“no” to the question, “Has your agency been able to grant
20
your request [for accommodations]?” could likewise be
viewed as consistent with her accommodation claim. To be
sure, as the Secretary suggests, Solomon’s answer could mean
that the Department was unable to grant the accommodations
because they either were unreasonable or would have been
ineffective in permitting Solomon to work despite her
disability. But a jury could just as easily conclude that the
Department was unable to grant the accommodations because
Solomon’s supervisors unreasonably denied her requests.
The Secretary points to statements made by Dr. Cozzens,
Solomon’s psychiatrist, in support of Solomon’s FERS
application that, according to the Secretary, are inconsistent
with Solomon’s accommodation claim. Even assuming the
statements of a third party like Cozzens could bar Solomon’s
claim, but cf. Pyramid Sec. Ltd. v. IB Resolution, Inc., 924
F.2d 1114, 1123 (D.C. Cir. 1991) (refraining from deciding
whether the sham-affidavit rule, which requires parties to
explain inconsistencies in their sworn statements, applies to
non-party witnesses who have made inconsistent sworn
statements), doing so would be inappropriate because
Cozzens’s statements, like Solomon’s, can be reconciled with
her accommodation claim. In an August 2004 letter to OPM,
Cozzens stated that “disability retirement [was] the only
viable option” for Solomon since her condition had shown
“little improvement” over the spring and summer of 2004.
Nowhere in that letter, however, did Cozzens mention the
possibility of reasonable accommodations. Moreover, in his
sworn declaration in this litigation, Cozzens states that
Solomon “could have returned to work in July[] 2004” if the
agency had afforded her certain accommodations, “such as
giving her a quiet work space and allowing her to work
flexible hours and/or to work at home.” Cozzens Decl. ¶ 7;
see also id. ¶ 6 (explaining that disability retirement was “the
only option left” for Solomon in August 2004 because her
21
supervisors had “refused her request for advance sick leave
and denied her the opportunity to work part-time and/or to
work at home”).
Since Solomon has demonstrated that a reasonable jury
could find that the statements she and Cozzens made in
support of her application for FERS disability benefits are
consistent with her current claim that she could have worked
in the spring and summer of 2004 with reasonable
accommodation, her accommodation claim is not foreclosed
under the standard set forth in Cleveland. See Cleveland, 526
U.S. at 807. This is not to say that Solomon’s and Cozzens’s
statements in support of Solomon’s FERS application are
irrelevant to her accommodation claim. Indeed, given
Solomon’s and Cozzens’s August 2004 representations to
OPM, a jury might well be skeptical of their current positions
regarding Solomon’s ability to work. See Whitbeck v. Vital
Signs, Inc., 159 F.3d 1369, 1372–74 (D.C. Cir. 1998) (holding
that information contained in applications for disability
insurance benefits may be relevant to a plaintiff’s claim that
her employer failed to reasonably accommodate her
disability); Swanks, 116 F.3d at 587 (noting that claimants’
statements in support of their applications for SSDI benefits
may be relevant in ADA suits). We hold only that a
reasonable jury could find that their representations to OPM
are not inconsistent with the elements of Solomon’s
accommodation claim.
Our conclusion is reinforced by the fact that, despite the
Secretary’s protestations to the contrary, allowing Solomon’s
claim to proceed is not likely to unfairly benefit Solomon or
unduly prejudice the government. Although the issue of
remedies is not before us, the parties appear to agree that any
award of back pay Solomon might obtain on her
accommodation claim could be reduced by the amount of
22
FERS disability benefits she has received. See Appellant’s
Reply Br. 10 n.5; Oral Arg. Tr. at 40:21–41:10. As we have
previously recognized, offsetting awards in disability-
discrimination cases by the amount of disability benefits the
plaintiff has received “may provide a way to prevent windfall
recoveries while guaranteeing disabled persons the full
protection” of both federal antidiscrimination laws and
programs designed to provide assistance to individuals whose
disabilities prevent them from working. Swanks, 116 F.3d at
587.
This brings us to Solomon’s claims that her supervisors
unlawfully retaliated against her for engaging in activities
protected by Title VII, the ADEA, and the Rehabilitation Act.
Addressing only Solomon’s Title VII retaliation claim, the
district court rejected the contention that Solomon’s
supervisors retaliated against her by taking the “ ‘materially
adverse’ ” action of denying her accommodation requests.
See Solomon, 656 F. Supp. 2d at 62 (quoting Burlington N. &
Santa Fe Ry., 548 U.S. at 68); see also Baloch v. Kempthorne,
550 F.3d 1191, 1198 (D.C. Cir. 2008) (“To prove retaliation,
the plaintiff generally must establish that he or she suffered (i)
a materially adverse action (ii) because he or she had brought
or threatened to bring a discrimination claim.”). Reasoning
that the Department’s failure to grant Solomon
accommodations could not have been “ ‘adverse’ if she could
not reasonably have been accommodated,” the district court
held that Solomon’s application for and receipt of FERS
disability benefits “precluded” her Title VII retaliation claim
because she would have been ineligible for such benefits if
she could have worked with reasonable accommodations.
Solomon, 656 F. Supp. 2d at 57, 62. We reject this holding
for the same reason we have concluded that Solomon is not
precluded from pursuing her accommodation claim. See
supra pp. 10–22. Since a reasonable jury could find that
23
Solomon’s statements in support of her FERS application are
consistent with her current contention that she could have
worked in the spring and summer of 2004 if afforded
reasonable accommodations, neither her accommodation
claim nor her retaliation claims are foreclosed.
III.
The Secretary urges us to affirm the district court’s grant
of summary judgment on alternative grounds. Specifically,
the Secretary argues that the undisputed material facts
demonstrate 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. See Fed. R.
Civ. P. 56. But the district court never reached these
alternative arguments, grounding its decision instead on its
“threshold” determination that recipients of FERS disability
benefits are precluded from pursuing claims of discrimination
under the Rehabilitation Act. Solomon, 656 F. Supp. 2d at 59.
Lacking the benefit of the district court’s analysis of whether
genuine issues of material fact exist that would preclude the
entry of summary judgment, we believe the most prudent
course is to remand for the district court to consider this issue
in the first instance. See Steele v. Schafer, 535 F.3d 689, 693,
695–96 (D.C. Cir. 2008) (declining to decide whether the
government was entitled to summary judgment on alternative
grounds not reached by the district court and remanding for
the district court to consider the government’s arguments).
For the reasons given above, we vacate the district
court’s entry of summary judgment with respect to Solomon’s
accommodation and retaliation claims and remand for further
proceedings consistent with this opinion.
So ordered.