United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 19, 2015 Decided December 29, 2015
No. 14-7118
PENELOPE MINTER,
APPELLANT
v.
DISTRICT OF COLUMBIA,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:10-cv-00516)
Emre N. Ilter argued the cause for appellant. On the brief
were Michael S. Nadel and Johnny H. Walker.
Richard S. Love, Senior Assistant Attorney General, Office
of the Attorney General for the District of Columbia, argued the
cause for appellee. With him on the brief were Karl A. Racine,
Attorney General, Todd S. Kim, Solicitor General, and Loren L.
AliKhan, Deputy Solicitor General.
Before: GARLAND, Chief Judge, ROGERS, Circuit Judge,
and EDWARDS, Senior Circuit Judge.
2
Opinion for the Court filed by Chief Judge GARLAND.
GARLAND, Chief Judge: Appellant Penelope Minter sued
the District of Columbia for alleged violations of the Americans
with Disabilities Act (ADA) and the Rehabilitation Act. The
district court granted summary judgment in favor of the District.
We affirm.
I
Minter suffered from sarcoidosis and related sarcoid
arthritis that made it difficult for her to maintain a regular forty-
hours-per-week work schedule. At a meeting in September
2006, she asked her employer, the District of Columbia Office
of the Chief Medical Examiner (OCME), about working a
reduced schedule as a way of accommodating her disability.
Unfortunately, while the Office’s ADA Coordinator was looking
into the possibility of an accommodation, Minter slipped on a
newly waxed floor and sustained a serious injury that severely
aggravated her preexisting conditions. The new injury occurred
on September 26. On December 1, Minter had a second meeting
with the ADA Coordinator, Sharlene Williams, during which
Minter contends that Williams said a reduced schedule would
not be a reasonable accommodation, but also requested Minter’s
medical records “so that she could decide.” Minter Dep. 255-56
(Nov. 13, 2012) (J.A. 56).
Thereafter, in December and January, Minter took several
weeks off from work on account of her September injury. In
February 2007, she stopped working altogether. Between
February and May, OCME sent Minter several letters requesting
documentation of her injury; Minter did not provide any. In
June, OCME told her that she would have to report to duty or
provide medical documentation of her injury. If she did neither,
3
OCME said, it would have to find her absent without leave and
subject to disciplinary action.
Minter finally responded by faxing her employer a
physician’s “Disability Certificate,” dated June 19, 2007, stating
that Minter’s injury had left her “Totally Disabled” since
September 26, 2006 and that she would be so disabled
“indefinitely.” Disability Certificate (J.A. 284).1 Minter
advised OCME that she “hope[d]” to return to work by
September 2007. James Dep. 103 (J.A. 224) (testimony of
Minter’s supervisor quoting cover letter attached to the faxed
disability certificate). Unwilling to wait any longer for Minter’s
uncertain return, OCME terminated her employment.
Minter brought suit under the Americans with Disabilities
Act, 42 U.S.C. §§ 12101 et seq., and the Rehabilitation Act, 29
U.S.C. §§ 791 et seq., alleging that the District: (1) unlawfully
refused to accommodate her disability, and (2) retaliated against
her for requesting an accommodation by terminating her
employment.2 The district court granted summary judgment for
the District on the grounds, inter alia, that no reasonable jury
could find either that Minter was a qualified individual for
purposes of the ADA and the Rehabilitation Act, or that Minter
1
The disability certificate was contained in a sealed appendix.
Because unsealing is required to explain our decision, we unseal the
cited page. The substance of the certificate is already in the public
record. See Minter v. District of Columbia, 62 F. Supp. 3d 149, 159
n.9 (D.D.C. 2014); Minter Br. 20-21; District Br. 13, 29.
2
Minter’s complaint also cited the District of Columbia Human
Rights Act (DCHRA), D.C. Code §§ 2-1401.01 et seq. Neither she
nor the district court treated that statute as requiring an analysis
different from that required by the above-cited federal statutes, nor
does she so contend on appeal. We therefore do not separately address
her DCHRA claim.
4
was terminated because of her accommodation request. Minter
v. District of Columbia, 62 F. Supp. 3d 149, 167-68 (D.D.C.
2014).3
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 if
“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); 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 nonmoving
party.” Anderson, 477 U.S. at 248.
II
We first address Minter’s claim that the District of
Columbia unlawfully refused to accommodate her disability.
The ADA and the Rehabilitation Act require the District to
“mak[e] reasonable accommodations to the known physical or
mental limitations of an otherwise qualified individual with a
disability.” 42 U.S.C. § 12112(b)(5)(A) (ADA provision); 29
U.S.C. § 794(d) (Rehabilitation Act provision incorporating
ADA standards); see Solomon v. Vilsack, 763 F.3d 1, 5 (D.C.
Cir. 2014); Stewart v. St. Elizabeths Hosp., 589 F.3d 1305, 1307
3
The district court also found that Minter’s failure-to-
accommodate claims were untimely filed. Minter, 62 F. Supp. 3d at
161-65. Because the other grounds for granting summary judgment
are sufficient, we do not reach the timeliness issues.
5
(D.C. Cir. 2010).4 Accordingly, to win on this claim, Minter
must show both that the District refused to accommodate her
disability, and that she was a “qualified individual,” 42 U.S.C.
§ 12112(b)(5)(A). See Solomon, 763 F.3d at 9.
Minter alleges that the District first denied her request for
an accommodation on December 1, 2006, during a meeting with
ADA Coordinator Williams. Minter Br. 9-10. She has not,
however, raised a genuine dispute that her request was denied on
that day.
Minter’s own description of the December 1 conversation
acknowledges that Williams requested more information about
her injury, which indicates that Williams was trying to obtain
information she needed to decide what to do -- not that she had
already made a decision. Thereafter, Williams sent Minter a
string of e-mails, urging her to keep her appointment for a
follow-up meeting on December 5 and telling Minter that
Williams needed more information about “what
accommodations are needed.” E-mail Chain Between Sharlene
Williams and Penelope Minter (Dec. 1-5, 2006) (J.A. 235-36).
It is undisputed that Minter failed to keep her appointment;
failed to provide any further information until her June
physician’s letter; and did not “raise[] her need for
accommodation between December 2006 and June 2007.”
Minter Reply Br. 12-13.
Thus, far from finally denying Minter’s request for an
accommodation, the record shows that Williams was engaged in
the “interactive process” that is often necessary to determine a
reasonable accommodation. See Mogenhan v. Napolitano, 613
F.3d 1162, 1167-68, 1167 n.4 (D.C. Cir. 2010) (quoting 29
4
See also 29 U.S.C. §§ 705(34), 794(a) & (b)(1)(A) (application
to the District of Columbia).
6
C.F.R. § 1630.2(o)(3)); see also Ward v. McDonald, 762 F.3d
24, 31-33, 33 n.3 (D.C. Cir. 2014); Stewart, 589 F.3d at
1308-09. To “establish that her request was ‘denied,’ [a
plaintiff] must show either that the [agency] in fact ended the
interactive process or that it participated in the process in bad
faith.” Ward, 762 F.3d at 32. Minter has failed to proffer any
evidence that would raise a genuine dispute as to that question.
See id. at 33 n.3 (affirming summary judgment, despite the
plaintiff’s testimony that her request for an accommodation was
denied at a meeting, because a follow-up letter from the
employer showed that “her accommodation request was still
under consideration”).
Minter alleges that the District denied her request for an
accommodation a second time during a June 1, 2007, telephone
call about her extended absence. The problem with a claim
based on a June 1 denial is that Minter was indisputably not a
a “qualified individual” as of that date.
As is relevant here, the term “qualified individual” means
“an individual who, with or without reasonable accommodation,
can perform the essential functions of the employment position
that such individual holds.” 42 U.S.C. § 12111(8); see Doak v.
Johnson, 798 F.3d 1096, 1105 (D.C. Cir. 2015). The plaintiff
must establish her ability to perform those functions (with or
without reasonable accommodation) at the time the employer
denied her request for accommodation. See Basden v. Prof’l
Transp., Inc., 714 F.3d 1034, 1037 (7th Cir. 2013) (holding that
a plaintiff’s “ability to come to work, or to otherwise perform
the essential functions of her job, is examined as of the time of
7
the adverse employment decision at issue”).5 This Minter did
not do.
It is undisputed that as of June 1, 2007, Minter had not
performed a single day of work in more than three months. The
only other evidence in the record regarding her ability to
perform her employment functions on that date was her
physician’s certificate of June 19, 2007, which stated that she
was and had been “Totally Disabled” since her injury on
September 26, 2006. The June certificate further stated that she
was disabled “indefinitely.” And the most that Minter herself
could say later that month was that she “hope[d]” to return in
another three months.
Accordingly, there can be no genuine dispute that Minter
was not a qualified individual on June 1. See 42 U.S.C.
§ 12111(8) (defining “qualified individual” as one who can, with
or without reasonable accommodation, “perform the essential
functions” of her position); see also EEOC, No. 915.002,
Enforcement Guidance: Reasonable Accommodation and Undue
Hardship Under the Americans with Disabilities Act (2002),
available at 2002 WL 31994335, at *21 (stating that “six
months is beyond a ‘reasonable amount of time’” to retain a
non-performing employee). And because she was not a
5
See also Flemmings v. Howard Univ., 198 F.3d 857, 858, 861-
62 (D.C. Cir. 1999) (holding that a date at which the plaintiff was
“wholly unable to work either with or without an accommodation . . .
fell beyond the scope of the ADA’s protection”); 29 C.F.R.
§ 1630.2(m) app. (EEOC Interp. Guidance) (“The determination of
whether an individual with a disability is qualified . . . should be based
on the capabilities of the individual . . . at the time of the employment
decision.”); Oral Arg. Recording at 25:00-10 (statement by Minter’s
counsel agreeing with this proposition).
8
“qualified individual,” the district court properly granted
summary judgment against her refusal-to-accommodate claim.
III
Minter’s second claim is that, by terminating her, the
District unlawfully retaliated against her for seeking an
accommodation for her disability. Such retaliation, if it had
occurred, would have been prohibited by the ADA and the
Rehabilitation Act. See 29 U.S.C. § 794(d); 42 U.S.C.
§ 12203(b); see also Doak, 798 F.3d at 1099; Solomon, 763 F.3d
at 5, 14-16. To establish a retaliation claim, Minter must show,
inter alia, that there “existed a causal link” between her
termination and her request for an accommodation. See Smith
v. District of Columbia, 430 F.3d 450, 455 (D.C. Cir. 2005).
The District states that it terminated Minter, not because she
requested an accommodation, but because she effectively
abandoned her job. She did so, it maintains, by failing to report
to work from February to June 2007 and failing to provide
medical documentation supporting her absence --
notwithstanding repeated requests to do so during that period.
See District Br. 38-39; see also Minter, 62 F. Supp. 3d at 168
(describing the District’s position in the trial court). When she
finally did provide a physician’s certificate, it stated that she had
been “Totally Disabled” since September and would be so
“indefinitely.” Disability Certificate (J.A. 284). Without
elaboration or support, Minter’s cover letter advised OCME that
she “hope[d] to return by the beginning of September,
depending on present treatment.” James Dep. 103 (J.A. 224).
Because “an essential function of any government job is an
ability to appear for work,” Carr v. Reno, 23 F.3d 525, 530
(D.C. Cir. 1994), the District’s explanation for terminating
Minter was legitimate, and no reasonable jury could conclude
otherwise.
9
Where, as here, “an employer asserts a legitimate,
nondiscriminatory reason for an adverse employment action,”
the remaining question is “whether the plaintiff produced
sufficient evidence for a reasonable jury to find that the
employer’s asserted non-discriminatory reason was not the
actual reason and that the employer intentionally discriminated
against the plaintiff on a prohibited basis.” Adeyemi v. District
of Columbia, 525 F.3d 1222, 1226 (D.C. Cir. 2008). Minter
contends that she produced such evidence by showing that there
was a conflict between the rationale for termination the District
gave in this litigation and the rationale Beverly Fields, OCME’s
Chief of Staff, described in her deposition. That alleged
conflict, Minter argues, indicates that the District’s
nonretaliatory reason was “‘unworthy of credence.’” Minter Br.
30 (quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S.
248, 256 (1981)).
To support her claim of conflicting rationales, Minter points
to Fields’ deposition, in which Fields testified that Minter was
terminated because:
We have to have work done. We’re not getting any
response from the employee for months, and the
employee is not reporting to work. So, the agency has
to have the work done and with all of the efforts that
we made to attempt to get documentation from the
employee, hear from the employee about what was
going on with her, we had to make a decision to move
forward so that we could get the work done.
Fields Dep. 94 (J.A. 283). Minter reads this testimony as saying
that the District terminated her solely because she failed to
provide the necessary documentation about her injury, while the
District now claims that it terminated her for failing to provide
adequate documentation and for failing to report to work. We
10
do not believe that a reasonable jury could perceive such a
conflict. See Fields Dep. 94 (J.A. 283) (referring both to “the
efforts that we made to attempt to get documentation from the
employee” and to Minter “not reporting to work”).6
Even if there were some inconsistency in the proffered
rationales, Minter would still need to prove that the “actual
reason” for her termination was retaliatory. Adeyemi, 525 F.3d
at 1226. Nothing in the minor inconsistency that Minter alleges,
however, supports such an inference. Instead, Minter relies on
the “temporal proximity,” Solomon, 763 F.3d at 16, between her
second request for accommodation and her termination. But
when an employer comes forward with a legitimate,
nonretaliatory reason for an employment action, “positive
evidence beyond mere proximity” is required “to create a
genuine issue of material fact concerning whether the motive for
[an adverse employment action] was . . . retaliation.” Id.; see
Doak, 798 F.3d at 1107-08; Hamilton v. Geithner, 666 F.3d
1344, 1359 (D.C. Cir. 2012). That is particularly true in a case
like this one, in which the request for accommodation came
during the same period in which the employee was entirely
unable to perform the functions of her position even with an
accommodation. Because Minter did not proffer any such
evidence, the district court properly granted summary judgment
against her retaliation claim.
6
Although it is unclear, Minter’s brief may also be read to argue
that the District’s reason for her firing was pretextual because Fields
said OCME never received any medical documentation when, in fact,
it received the disability certificate. Fields’ testimony, however, was
that something “may have” eventually come in from Minter’s doctor,
but that “it may not have been enough.” Fields Dep. 93 (J.A. 282).
11
IV
For the foregoing reasons, the judgment of the district court
is
Affirmed.