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_