Solomon v. Vilsack

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.

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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

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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

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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

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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

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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.

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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

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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

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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.

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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

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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

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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.

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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.