explaining that even where there is temporal proximity between the protected activity and the alleged retaliatory action, it must be “[kept] in mind that ‘positive evidence beyond mere proximity is required to defeat the presumption that the [employer’s] proffered explanations are genuine.’ ”
How later courts described this case
- explaining that even where there is temporal proximity between the protected activity and the alleged retaliatory action, it must be “[kept] in mind that ‘positive evidence beyond mere proximity is required to defeat the presumption that the [employer’s] proffered explanations are genuine.’ ”
- holding that the district court improperly granted defendant’s motion for summary judgment on plaintiffs failure to accommodate claim based on defendant’s termination of telecommute agreement when evidence “suggest[ed] [plaintiff] did not have to be physically present in the office”
- finding that plaintiff did not have sufficient evidence to rebut employer’s explanation for the adverse employment actions where the only evidence linking his protected activities to the adverse employment actions was the proximity in time between the events
- holding that summary judgment was precluded where an employer’s communication indicated that the employee “could no longer count on the accommodations the [employer] had de facto afforded” even where “it is far from clear such accommodations are reasonable”
Written by the judges who cited it.
The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 10, 2006 Decided April 6, 2007
No. 05-5033
PHILLIP S. WOODRUFF
APPELLANT
v.
MARY E. PETERS, SECRETARY, U.S. DEPARTMENT OF TRANS-
PORTATION,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 01cv01964)
Mary G. Sprague, appointed by the court, argued the cause
as amicus curiae for appellant. With her on the brief was
Donald R. Gordon, appointed by the court.
Peter S. Smith, Assistant U.S. Attorney, argued the cause
for appellee. With him on the brief were Kenneth L. Wainstein,
U.S. Attorney at the time the brief was filed, and R. Craig
Lawrence, Assistant U.S. Attorney. Michael J. Ryan and
William R. Cowden, Assistant U.S. Attorneys, entered appear-
ances.
2
Before: HENDERSON, ROGERS and BROWN, Circuit Judges.
BROWN, Circuit Judge: Appellant Phillip Woodruff
asserted discrimination and retaliation claims against the
Secretary of Transportation. The district court granted summary
judgment in favor of the Secretary on both claims. We now
reverse the district court’s order relating to the discrimination
claim, affirm the order relating to the retaliation claim, and
remand for further proceedings.
I
For several years, Woodruff worked for the Federal
Aviation Administration (FAA), leading a team that produced
educational materials. On or about September 29, 1995,
Woodruff was injured in a fall at work. One month later,
Woodruff’s manager, James Boone, signed a telecommuting
agreement, permitting Woodruff to work from home up to two
days per week. The FAA encouraged such agreements in order
to reduce the FAA’s environmental impact by minimizing
overall commute time, but the FAA Telecommuting Handbook
required that the agreements identify in advance the days when
the employee would work from home. Woodruff’s agreement
did not do so, listing his telecommuting days as “variable.”
In April 1996, Carson Eoyang took over as Woodruff’s
manager. Friction with Eoyang and others led Woodruff to file
an EEOC complaint in February 1997. The claims asserted in
that complaint are not before us in this case.
Meanwhile, Woodruff’s symptoms worsened, and he went
on leave from April 30, 1997, through February 2, 1998—a
period that included back surgery on May 1, 1997, and a lengthy
recuperation. While Woodruff was away, Eoyang took on many
of Woodruff’s supervisory responsibilities himself. Upon
3
Woodruff’s return to work, Eoyang told him he could resume
his supervisory duties only when he was able to return to work
on a regular basis, with predictable hours that overlapped with
those of most of his subordinates. Woodruff followed up with
Eoyang repeatedly to see if this decision could be amended. In
a typical memo, Eoyang responded:
While you have gradually increased your hours to 80
hours a pay period, you have yet to be able to resume a
regular schedule such that I can rely on your availability as
a supervisor.
....
. . . If, at some point, you return to a regular, full-time
schedule and are able to work a regular eight- or nine-hour
schedule, without the breaks you now have, I will recon-
sider my decision at that time.
Memorandum from Eoyang to Woodruff (Apr. 30, 1998) [“Apr.
30 Memo”].
Woodruff’s return to work proceeded in incremental stages.
Citing medical evaluations indicating he needed extensive rest
and daily therapy, Woodruff at first worked only four hours a
day. He was able to return to full-time work by April, thanks to
accommodations from the FAA, including being allowed to
work much of the time from home or a telecommuting facility;
to take a break in the middle of the day to recuperate; and to
choose office hours that minimized his commute time. Eoyang
agreed to these accommodations with the following proviso: “if
you are unable to work a fixed schedule, I will expect that you
will provide me with your weekly work schedule by Friday of
the prior week.” Memorandum from Eoyang to Woodruff (Feb.
9, 1998).
4
The FAA Telecommuting Handbook described telecommu-
ting as “a supervisor-approved work option,” emphasizing
“employees have no automatic right to continue in the program
in the event of a change of supervisor or position.” Thus, at
least formally, Woodruff’s telecommuting agreement expired
when Eoyang replaced Boone, and Eoyang never signed a new
agreement.
However, Woodruff apparently viewed Eoyang’s February
9 memo as an extension of his earlier telecommuting agreement
in all but name. When Debbie Holden, who monitored the
FAA’s telecommuting program, asked for an update on his
agreement, Woodruff simply filled out a new form reflecting the
February 9 memo without obtaining a signature from Eoyang.
Woodruff submitted such unsigned forms on at least two
separate occasions.
Woodruff argues the following protected acts triggered
illegal discrimination by Eoyang. First, on August 10, he
deposed Eoyang regarding allegations from his February 1997
EEOC complaint. Second, on August 11, he contacted an EEOC
Counselor to commence an additional EEOC complaint pro-
ceeding regarding Eoyang’s refusal to reinstate his supervisory
authority. Third, on August 24, he met with the Counselor
regarding his second complaint.
Coincidentally or not, Eoyang sent Woodruff a memo on
September 3 revoking some of the accommodations Woodruff
had previously enjoyed:
While, heretofore, I have allowed you maximum flexibility
with respect to your work schedule – allowing you to work
a split schedule providing for a rest period in between and
approving both annual and sick leave on a liberal basis –
please be advised that I can no longer continue to do so
5
indefinitely. . . . I can no longer accommodate a schedule
whereby I do not know from day-to-day whether you will
report to the office or not.
Memorandum from Eoyang to Woodruff (Sept. 3, 1998) [“Sept.
3 Memo”]. In the same memo, Eoyang indicated it had “come
to [his] attention” that Woodruff had supplied Holden with
unsigned telecommuting forms:
I note that the “updated” agreement you provided Ms.
Holden was not signed by me, your supervisor, as required,
nor did you ever discuss the agreement with me. . . .
[P]lease be advised that I do not consider either the agree-
ment completed in November 1995 or the update you
submitted on February 2, 1998, without my knowledge, to
be valid.
Id. On September 10, 1998, Woodruff again contacted the
EEOC Counselor and added Eoyang’s September 3 memo to his
list of grievances.
Woodruff’s second EEOC complaint was officially filed on
December 1, 1998. On June 12, 2001, the Department of
Transportation (DOT) issued its Final Agency Decision (FAD)
on that complaint, dismissing some of the claims and finding for
the FAA on the others. Woodruff received notice of the FAD
“on or about June 15.” Pl.’s Statement Genuine Issues Material
Fact [“Woodruff’s Issue Statement”] at 9 ¶ 23.
Woodruff filed a complaint against the Secretary in the
district court on September 14, 2001, and the court subsequently
granted his motion to amend the complaint. Finally, in 2003,
Woodruff moved to file a Second Amended Complaint, which
6
we treat as the official complaint for purposes of the current
case.1
On January 3, 2005, the court granted summary judgment
in favor of the Secretary on all of Woodruff’s claims, and
Woodruff appealed. After Woodruff’s counsel withdrew, this
court appointed amicus curiae (“Amicus”) to represent Wood-
ruff. Amicus filed briefs challenging the grants of summary
judgment only as to Woodruff’s claims of (1) discrimination
based on disability and (2) retaliation based on EEOC activity.
As Woodruff has adopted Amicus’s briefs as his own, we
consider all other claims abandoned.
II
Before addressing the merits of Woodruff’s appeal, we
resolve two procedural issues.
First, the Secretary argues Woodruff’s complaint before the
district court was barred by 42 U.S.C. § 2000e-16(c). That
subsection—the basis for discrimination actions against federal
employers—requires that district court complaints be filed
“[w]ithin 90 days of receipt of notice” of the defendant agency’s
FAD. Courts apply this limit strictly and “will dismiss a suit for
missing the deadline by even one day.” Wiley v. Johnson, 436
F. Supp. 2d 91, 96 (D.D.C. 2006); see also Harris v. Sec’y, U.S.
Dep’t of Veterans Affairs, 126 F.3d 339 (D.C. Cir. 1997) (giving
effect to a complaint filed one day late only because the Depart-
1
While the district court’s docket indicates no explicit order
granting Woodruff’s motion to amend, the court stated that “in April
2004, the court granted the plaintiff’s motion to file a second amended
complaint,” Woodruff v. Mineta, No. 1:01-cv-1964, slip op. at 4
(D.D.C. Jan. 3, 2005).
7
ment failed to raise the untimeliness in its answer). Woodruff
has stated he received notice “on or about June 15, 2001,” which
is 91 days before his district court complaint was filed. If
Woodruff received notice of the FAD on or before June 15, his
complaint was untimely.
But a plaintiff’s failure to meet the § 2000e-16(c) deadline
is an affirmative defense, Harris, 126 F.3d at 341, and the
burden of proof is on the party claiming the deadline was
missed. The Secretary has failed to meet the burden here. The
DOT sent Woodruff notice of the FAD on June 12, but nothing
in the record establishes when Woodruff received this notice.
The DOT’s letter was marked “return receipt requested,” but no
receipt was introduced into evidence. Woodruff’s Issue
Statement and exhibits are inconclusive. While we could
speculate that Woodruff’s statement that he received the notice
“on or about June 15” makes it more likely than not that his civil
complaint was untimely, such speculation does not take the
place of hard proof, which the Secretary simply has not pro-
vided. Therefore, the DOT’s affirmative defense of untimely
filing fails.
Second, the Secretary contends that Amicus’s arguments
regarding (1) adverse employment actions Woodruff claims to
have incurred in September 1998 and (2) Woodruff’s status as
a “qualified individual with a disability” were not raised before
the district court and were thus waived. “It is the general rule,
of course, that a federal appellate court does not consider an
issue not passed upon below.” Singleton v. Wulff, 428 U.S. 106,
120 (1976); see also Kingman Park Civic Ass’n v. Williams, 348
F.3d 1033, 1039 (D.C. Cir. 2003). Absent “exceptional circum-
stances,” we do not ordinarily entertain issues first raised on
appeal. Marymount Hosp. v. Shalala, 19 F.3d 658, 663 (D.C.
Cir. 1994); see also Roosevelt v. E.I. Du Pont de Nemours &
Co., 958 F.2d 416, 419 n.5 (D.C. Cir. 1992) (listing examples of
8
sufficient circumstances). However, this rule is prudential only,
not jurisdictional. Yee v. City of Escondido, 503 U.S. 519, 533
(1992). Also, “[o]nce a federal claim is properly presented, a
party can make any argument in support of that claim; parties
are not limited to the precise arguments they made below.” Id.
at 534.
With regard to the September 1998 employment actions, the
simple answer is that Woodruff did in fact raise these below.
The Second Amended Complaint’s list of allegedly “unlawful
employment practices” included “[r]evoking the disability
accommodations previously granted to Plaintiff,” with such
revocation arguably having taken place on September 3. In his
opposition to the Secretary’s motion for summary judgment,
Woodruff described as adverse employment actions “a continu-
ing series of events” extending beyond July 10, 1998, including
“the rescission of Plaintiff’s telecommuting agreement,” and
cited the September 3 memo. Pl.’s Memo. Points & Auths. Opp.
Def.’s Mot. S.J. at 8. Likewise, in relation to the retaliation
claim, Woodruff noted Eoyang’s “September 10, 1998, refusal
to return his supervisory duties and honor his telecommuting
and maxi-flex schedule agreements.” Id. at 12–13. Thus,
Woodruff properly challenged the September 1998 actions
before the district court, and we may consider their impact on
appeal.
The Secretary’s argument challenging Woodruff’s claim to
be a “qualified individual with a disability” is similarly ill-
founded. The Second Amended Complaint alleged a “violation
of . . . Section 501 of the Rehabilitation Act of 1973” in that
Eoyang and others discriminated against Woodruff “based on
his . . . disability.” 2nd Am. Compl. ¶ 12. Under § 501 of the
Rehabilitation Act, codified at 29 U.S.C. § 791, “the Govern-
ment must take reasonable affirmative steps to accommodate the
handicapped, except where undue hardship would result.” Barth
9
v. Gelb, 2 F.3d 1180, 1183 (D.C. Cir. 1993). Section 501(g)
incorporates Title I of the Americans with Disabilities Act of
1990 (ADA) as its test for improper “nonaffirmative action
employment discrimination.” 29 U.S.C. § 791(g); see Taylor v.
Rice, 451 F.3d 898, 905 (D.C. Cir. 2006). That title bars only
such employment discrimination as harms “a qualified individ-
ual with a disability.” 42 U.S.C. § 12112(a). Thus, Woodruff’s
Second Amended Complaint implicitly averred that he was a
qualified individual with a disability. While it is true that his
opposition to the Secretary’s motion for summary judgment did
not address this prong of his prima facie case for discrimination,
this was presumably because the Secretary’s memorandum in
support of the motion did not challenge it. Only in the subse-
quent Reply in Support of Defendant’s Motion for Summary
Judgment did the Secretary question Woodruff’s status as a
qualified individual with a disability, a point to which Woodruff
had no opportunity to respond. Therefore, we may consider
both of Amicus’s challenged arguments on appeal.
III
Turning to the merits, we address first Woodruff’s discrimi-
nation claim. We review a district court’s grant of summary
judgment de novo. Johnson v. Executive Office for U.S.
Attorneys, 310 F.3d 771, 774 (D.C. Cir. 2002). Summary
judgment is warranted only if “there is no genuine issue as to
any material fact and . . . the moving party is entitled to a
judgment as a matter of law.” FED. R. CIV. P. 56(c); see also
Colbert v. Potter, 471 F.3d 158, 164 (D.C. Cir. 2006). In
reviewing a grant of summary judgment, we must “view the
evidence in the light most favorable to the nonmoving party and
draw all reasonable inferences in its favor.” Mastro v. Potomac
Elec. Power Co., 447 F.3d 843, 850 (D.C. Cir. 2006). As
employers rarely maintain records directly evidencing discrimi-
nation, “an added measure of ‘rigor,’ or ‘caution,’ is appropriate
10
in applying this standard to motions for summary judgment in
employment discrimination cases.” Aka v. Wash. Hosp. Ctr.,
116 F.3d 876, 879-80 (D.C. Cir.) (citations omitted), judgment
vacated, 124 F.3d 1302 (D.C. Cir. 1997) (en banc).
Pursuant to 42 U.S.C. § 2000e-16(b), the Equal Employ-
ment Opportunity Commission (“EEOC”) promulgated 29
C.F.R. § 1614.105, which requires employees alleging discrimi-
nation based on a “handicap” to “initiate contact with a Coun-
selor within 45 days of the date of the matter alleged to be
discriminatory or, in the case of personnel action, within 45 days
of the effective date of the action,” 29 C.F.R. § 1614.105(a)(1).
Amicus contends Eoyang’s memo of September 3, 1998
constituted discrimination. As Woodruff contacted his Coun-
selor regarding that memo on September 10, 1998, this portion
of Woodruff’s discrimination claim is not time-barred.
Woodruff’s Rehabilitation Act claim incorporates ADA
§ 102, which provides that “[n]o covered entity shall discrimi-
nate against a qualified individual with a disability because of
the disability of such individual in regard to job application
procedures, the hiring, advancement, or discharge of employees,
employee compensation, job training, and other terms, condi-
tions, and privileges of employment.” 42 U.S.C. § 12112(a).
Here, “discriminate” is defined to include “not making reason-
able accommodations to the known physical or mental limita-
tions of an otherwise qualified individual with a disability who
is an applicant or employee, unless such covered entity can
demonstrate that the accommodation would impose an undue
hardship on the operation of the business of such covered
entity.” § 12112(b)(5)(A) (emphases added); see also 29 C.F.R.
§ 1630.9(a).
The term “qualified individual with a disability” means “an
individual with a disability who, with or without reasonable
11
accommodation, can perform the essential functions of the
employment position that such individual holds or desires.” 42
U.S.C. § 12111(8). “Reasonable accommodation” may include
“job restructuring” and “part-time or modified work schedules.”
§ 12111(9)(B). “Undue hardship” means “an action requiring
significant difficulty or expense,” as measured by various
statutory factors. § 12111(10)(A); see also 29 C.F.R.
§ 1630.15(d) (confirming that “undue hardship” is an affirma-
tive defense).
Woodruff maintains he is a “qualified individual with a
disability,” and that the FAA failed to grant him the “reasonable
accommodations” his disability necessitated. Taken together,
these two statements suffice for a prima facie case of discrimi-
nation under 42 U.S.C. § 12112(b)(5)(A). But the two state-
ments are interconnected, as Woodruff’s status as a qualified
individual with a disability depends on what tasks he can
perform given reasonable accommodation. See Carr v. Reno, 23
F.3d 525, 529 (D.C. Cir. 1994). Thus, provided Woodruff in
fact has a disability, we must “ask simply whether any reason-
able accommodation would have allowed [Woodruff] to perform
all the essential functions of [his] job without creating an undue
hardship for the agency.” Id. In this context, “consideration
shall be given to the employer’s judgment as to what functions
of a job are essential.” 42 U.S.C. § 12111(8).
The Secretary argues Woodruff does not have a disability
in the technical sense of 42 U.S.C. § 12102(2). But as noted
above, this argument appeared first in the Secretary’s Reply to
Woodruff’s Opposition, at which point Woodruff had no
opportunity to develop the record in response. Therefore, we
shall not consider the argument here. See Singleton v. Wulff,
428 U.S. 106, 121 (1976) (“The matter of what questions may
be taken up and resolved for the first time on appeal is one left
primarily to the discretion of the courts of appeals, to be
12
exercised on the facts of individual cases.”); Sadlowski v. United
Steelworkers of Am., 645 F.2d 1114, 1120 (D.C. Cir. 1981)
(“Typically when summary judgments are upheld on grounds
different from those relied on by the district court, the other
grounds were urged at trial.”), rev’d on other grounds, 457 U.S.
102 (1982); cf. Ramirez de Arellano v. Weinberger, 745 F.2d
1500, 1537 (D.C. Cir. 1984) (en banc) (refusing to order
summary judgment prior to discovery, as it would be “clearly
unjust for the appellate court to direct the issuance of summary
judgment” unless the issue “was clearly framed by the proceed-
ings below so that the parties had a legitimate chance to submit
all relevant materials and argue their implications”), vacated on
other grounds, 471 U.S. 1113 (1985). We thus assume Wood-
ruff has a disability.
Eoyang’s September 3 memo indicated Woodruff could no
longer count on the accommodations the FAA had de facto
afforded him: allowing him to set his own schedule and to take
breaks in the middle of the day. While it is far from clear such
accommodations are reasonable, if we view the facts in the light
most favorable to Woodruff his case is at least strong enough to
escape summary judgment. The FAA Telecommuting Hand-
book anticipates “[e]mployees may telecommute . . . as fre-
quently as five days a week.” The FAA allowed another
employee in Woodruff’s division to lead a team in Washington,
D.C., while working in Florida. Dolan Dep. 55–59 (Aug. 11,
1998). Such evidence, together with Woodruff’s description of
his team as “mostly . . . self-directed,” suggests Woodruff did
not have to be physically present in the office. Indeed, both
Boone and Eoyang allowed Woodruff to work with the proposed
accommodations for months, casting doubt on the suggestion
that the accommodations would impose undue hardship on the
FAA, or that even with such accommodations Woodruff would
be unable to perform all the essential functions of his job. Thus,
13
there remains a genuine issue of material fact as to Woodruff’s
discrimination claim, and summary judgment was inappropriate.
IV
Woodruff also challenges the district court’s grant of
summary judgment on his retaliation claim. Amicus suggests
two acts by Eoyang that might count as retaliation: the refusal
to reinstate Woodruff’s supervisory authority in February 1998,
and the revocation of some of Woodruff’s accommodations on
September 3, 1998. The February 1998 claim faces temporal
problems on both ends. On one side, Woodruff asks us to infer
causation based on temporal proximity alone, when the sup-
posed trigger acts took place in February—or at the latest
April—of 1997, at least nine months before the supposed
response. On the other side, Woodruff failed to present this
claim to an EEOC Counselor within 45 days, and the exhaustion
requirement from 29 C.F.R. § 1614.105(a)(1) at least arguably
applies to retaliation claims as well. See Nealon v. Stone, 958
F.2d 584, 590 (4th Cir. 1992) (collecting cases). As we find
unrelated grounds on which to reject Woodruff’s retaliation
claim, however, we assume without deciding that neither of
these problems sinks his February 1998 argument.
Section 501 of the Rehabilitation Act incorporates ADA
§ 107, which in turn incorporates “[t]he powers, remedies, and
procedures set forth in sections 705, 706, 707, 709, and 710 of
the Civil Rights Act of 1964,” 42 U.S.C. § 12117. Thus, we
apply Title VII’s McDonnell Douglas burden-shifting frame-
work to retaliation claims under the Rehabilitation Act when
employers assert non-retaliatory grounds for adverse employ-
ment actions. See Smith v. District of Columbia, 430 F.3d 450,
455 (D.C. Cir. 2005) (applying McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973), to an ADA retaliation claim); Barth
v. Gelb, 2 F.3d 1180, 1186 (D.C. Cir. 1993) (limiting applicabil-
14
ity of McDonnell Douglas framework to cases in which the
employer proffers a permissible ground for the action).
The plaintiff carries an initial burden of establishing a prima
facie case of retaliation by showing (1) he engaged in protected
activity; (2) he was subjected to an adverse employment action;
and (3) there was a causal link between the protected activity
and the adverse action. Smith, 430 F.3d at 455; see also
McDonnell Douglas, 411 U.S. at 802. If the plaintiff succeeds,
the burden of production shifts to the defendant, who must
articulate some legitimate, non-retaliatory reason for the adverse
action, see Smith, 430 F.3d at 455; McDonnell Douglas, 411
U.S. at 802, but the ultimate burden of persuasion remains
always with the plaintiff, Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 143 (2000). Once the defendant proffers the
requisite explanation, the plaintiff must “prove by a preponder-
ance of the evidence that the legitimate reasons offered by the
defendant were not its true reasons, but were a pretext for
[retaliation].” Id. (internal quotation marks omitted); see also
McDonnell Douglas, 411 U.S. at 805 (describing the proffer as
“presumptively valid”).
Woodruff’s filing of an EEOC complaint in February 1997
and his deposition of Eoyang pursuant to that complaint in
August 1998 were protected acts. In February 1998, when
Woodruff returned to work following his surgery, Eoyang
refused to reinstate his earlier supervisory authority. Subse-
quently, in his memo of September 3, Eoyang revoked some of
the accommodations Woodruff had previously enjoyed.
Viewing the facts in the light most favorable to Woodruff, we
find these are both adverse employment actions, and Woodruff
has established the first two prongs of his prima facie case of
retaliation.
15
Lacking a smoking gun from the FAA that would establish
causation, Woodruff asks us to infer a causal link from the
temporal proximity between the protected events and the
adverse actions. Temporal proximity can indeed support an
inference of causation, e.g., Mitchell v. Baldrige, 759 F.2d 80,
86 (D.C. Cir. 1985), but only where the two events are “very
close” in time, Clark County School Dist. v. Breeden, 532 U.S.
268, 273–74 (2001) (citing favorably Richmond v. ONEOK, Inc.,
120 F.3d 205, 209 (10th Cir. 1997), which rejected such an
inference where the events were three months apart). As less
than a month separated Woodruff’s deposition of Eoyang from
Eoyang’s September 3 memo, a reasonable finder of fact could
infer causation in that area without more. But the link between
Woodruff’s 1997 EEOC complaint and Eoyang’s refusal in
February 1998 to reinstate Woodruff’s supervisory authority is
much more tenuous. Woodruff argues that we should measure
the gap, not from his filing of the complaint, but from the
Counselor’s investigations in or around April 1997, and that the
period of Woodruff’s medical leave should toll the gap calcula-
tion, as Eoyang removed Woodruff’s authority at the first
possible moment, as soon as Woodruff returned to work. As
indicated above, we assume for present purposes that these
novel arguments are correct.
In response, the Secretary proffers legitimate reasons for
each adverse action. Eoyang explained his reasons for refusing
to reinstate Woodruff’s supervisory authority as follows:
Simply put, to be an effective supervisor, you must be
available to your subordinate employees on a regular, full-
time basis. . . . While you have gradually increased your
hours to 80 hours a pay period, you have yet to be able to
resume a regular schedule such that I can rely on your
availability as a supervisor.
16
. . . [Y]ou work several hours in the morning, have a
rest period of anywhere from one to three hours, and then
work several hours in the afternoon. . . . [This] is not an
appropriate schedule for a supervisor. Your unavailability
to subordinate employees during the hours that you must
rest, in addition to the fact that you are not able to predict
how long those rest periods will be, is not practical for a
team lead position.
Apr. 30 Memo.2 As for Eoyang’s subsequent revocation of
Woodruff’s accommodations, those accommodations were
always contrary to FAA policy. The FAA Telecommuting
Handbook emphasizes that “[t]he specific days and work hours
the employee will telecommute must be identified in advance
and included in the telecommuting agreement,” and that
“unstructured arrangements where employees telecommute at
will, on a day-to-day basis, based on personal choice, are not
permitted.” Eoyang explained all of this to Woodruff in his
September 3 memo, in which he revoked Woodruff’s non-
standard arrangement.
At this stage, “the McDonnell Douglas framework disap-
pears,” Murray v. Gilmore, 406 F.3d 708, 713 (D.C. Cir. 2005),
and we must simply determine whether Woodruff has put
forward enough evidence to defeat the proffer and support a
finding of retaliation. In exceptional circumstances, the
evidence supporting a plaintiff’s prima facie case may, on its
own, suffice to defeat the proffer’s presumption of validity and
thus render summary judgment improper. But here, Woodruff’s
2
In his discrimination claim, Woodruff of course asserts that none
of the job requirements described in Eoyang’s memo are valid. As the
Secretary bears only a burden of production at this stage of the
McDonnell Douglas framework, however, we need not resolve this
dispute here.
17
only evidence linking his protected activities to the adverse
employment actions is the proximity in time between the events.
If temporal proximity sufficed to rebut a legitimate proffer, then
protected activities would effectively grant employees a period
of immunity, during which no act, however egregious, would
support summary judgment for the employer in a subsequent
retaliation claim. Assuming the intention behind the ADA’s
retaliation provisions was to protect the remedial scheme but not
to create a permanent discipline-free zone for complainants, we
conclude positive evidence beyond mere proximity is required
to defeat the presumption that the proffered explanations are
genuine.
Eoyang essentially claimed he subjected Woodruff to the
alleged adverse actions because (1) Woodruff was not available
to his subordinates during regular work hours, and (2) Eoyang
did not consistently know in advance when Woodruff would be
at work. Woodruff responds to these proffers along three lines.
First, Woodruff contests Eoyang’s characterization of his
past work performance. But Amicus cites no evidence on point.
Eoyang complained in September 1998 that he “d[id] not know
from day-to-day whether [Woodruff] w[ould] report to the office
or not.” Sept. 3 Memo. This matches Eoyang’s complaint from
April 1998 that Woodruff was not available on a “regular” basis.
In response, Woodruff testified that he “was into the office like
three, sometimes four days a week,” Woodruff Dep. 40 (May 5,
2004), but this still would not make him “available” at all
regular work hours. Woodruff’s November 25, 1998 memo, in
which he states—without evidence and not under oath—that it
had been his practice “to accomplish the full schedule of 80
hours required during each pay period, with a majority of the
time being in regular duty status (e.g. not telecommuting),” is
likewise insufficient. Woodruff’s assertion in his deposition that
Eoyang’s estimate of his midday breaks as “one to three hours”
18
was “highly exaggerated” is belied by Woodruff’s own Sum-
mary Judgment Exhibit 18, in which he reports a break of two-
and-a-half hours on March 26.
Second, Woodruff argues that while he might not have been
in the office at all times, he was always present when his duties
required him to be there. But Eoyang clearly indicated supervi-
sors were always to be present. The fact that Woodruff allowed
his own subordinates greater flexibility, Woodruff Dep. 123–24,
in no way implies Eoyang had to do the same. Woodruff’s
argument that his flexible work schedule was a necessary
accommodation for his disability is unresponsive: While this
might support his discrimination claim, it does not contradict the
Secretary’s proffered justification for canceling Woodruff’s
accommodation.
Third, Woodruff maintains he attempted to conclude
telecommuting agreements with Eoyang to no avail. This is
again unresponsive. Such an agreement would not have
rendered Woodruff any more available during the hours when he
had to rest or attend medical appointments; nor would an
agreement guaranteeing Woodruff a flexible commuting
schedule have addressed Eoyang’s concern about not knowing
in advance when Woodruff would be in the office.3
In summary, Woodruff argues he could do his job despite
the shortcomings Eoyang cited, but does not present evidence
from which the finder of fact could infer Eoyang agreed. This
3
While acknowledging that most of his proposals to Eoyang
contained such a flexibility provision, Woodruff claims that in one
draft agreement he suggested a fixed schedule. But he has been
unable to produce the purported draft or to corroborate in any way this
claim that is so thoroughly at odds with all of his other, documented
activities.
19
is insufficient. We review not “the correctness or desirability of
the reasons offered but whether the employer honestly believes
in the reasons it offers.” Fischbach v. D.C. Dep’t of Correc-
tions, 86 F.3d 1180, 1183 (D.C. Cir. 1996) (alterations and
internal quotation marks omitted). Even if the finder of fact
were to credit all of Woodruff’s evidence, there would be no
basis for rejecting the presumptive validity of Eoyang’s explana-
tion as to both the February and September employment actions.
Therefore, the district court acted properly in granting summary
judgment to the Secretary on Woodruff’s retaliation claim.
V
For the reasons outlined above, we affirm the district
court’s grant of summary judgment as to Woodruff’s retaliation
claim, but we reverse the grant of summary judgment as to his
discrimination claim. The case is remanded to the district court
for further proceedings.
So ordered.