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.

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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”).

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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.