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Solomon v. Vilsack, No. 12-5123 (D.C. Cir. Aug. 15, 2014)

In the past eighteen months, there have been favorable decisions from the Second and Sixth Circuits about unconventional work scheduling as a reasonable accommodation. The D.C. Circuit joins those courts with a new Rehabilitation Act decision holding that the Department of Agriculture should have considered a flextime schedule for an employee under treatment for depression.

Solomon v. Vilsack, No. 12-5123 (D.C. Cir. Aug. 15, 2014): It was once standard for federal courts to hold that regular, timely attendance at work was inherently an essential function, without much analysis. But the Second Circuit in McMillan v. City of New York, 711 F.3d 120 (2d Cir. 2013), and Sixth Circuit in EEOC v. Ford Motor Co., 752 F.3d 634 (6th Cir. 2014), recently challenged that shibboleth, holding that when employees demonstrate that non-traditional schedules or telecommuting can accommodate a disability, employers may in turn need to evaluate such a proposal on the merits.

As is often the case in ADA and Rehabilitation Act cases, the plaintiff's difficulties began when new supervisors refused to extend a prior accommodation. From 1997 to 2004, Ms. Solomon rose to the level of senior analyst in the Administrative Programs Branch of the Budget Division within the Department of Agriculture's Rural Development Mission Area. Her attendance began to suffer as her depression intensified. Yet she stayed on top of a demanding workload, using leave for hours missed during normal duty, and working unscheduled hours without pay.

Ms. Solomon was finally asked in 2004 by her supervisor [Ms. Booth] to produce medical documentation for her need for a flexible work schedule:

"[She] responded with a letter from [treating doctor] Dr. Cozzens explaining that Solomon suffered from 'chronic depression, anxiety and insomnia' and requesting 'a flexible work schedule * * * to assist her with her medical treatment.' Solomon understood the request for a 'flexible work schedule' to mean the ability to come to work late or to work late hours if her depression so required, much like she had been doing for months."

Ms. Solomon nonetheless experienced resistance from her supervisors about her schedule, and filed a complaint of discrimination with the agency. In particular, her temporary direct supervisors (named Torres and French) forbade her from working late to complete projects and wrote her up as absent without leave, until she produced medical documentation to their satisfaction. Her health deteriorated, and she sought a part-time schedule and telecommuting as accommodations. These, too, were denied and - because she felt it was the only option left to her - Ms. Solomon took permanent disability leave.

The district court granted summary judgment on her reasonable accommodation claim (and related claim for retaliation) on the ground that regular attendance was an essential function and that a "maxiflex" schedule was, inherently, not a reasonable request.

The D.C. Circuit reverses. Because the agency did not challenge that Ms. Solomon was disabled, "the question before this court at this procedural juncture is whether, on this record, a jury could reasonably find that the maxiflex schedule that Solomon requested could be a 'reasonable' accommodation, within the meaning of the Rehabilitation Act, for her position as a budget analyst."

The panel holds, citing the recent Second and Sixth Circuit authority, that the reasonableness of a flexible schedule is factual - not a legal - question. "[T]he contours and demands of an employment position and the capacities of a workplace can vary materially from employer to employer .... Technological advances and the evolving nature of the workplace, moreover, have contributed to the facilitative options available to employers (although their reasonableness in any given case still must be proven)."

In this case, the federal government has published guidelines for maxiflex schedules through the Office of Personnel Management, permitting 80 hours to be worked over fewer than 10 workdays. "The Secretary ... need only look around the neighborhood to witness both the availability and viability of maxiflex work schedules specifically within the federal government .... [T]he Chief of Human Resources for Solomon's division admitted that 'some agencies' provide maxiflex as a potential workplace option."

Moreover, on Ms. Solomon's individual facts, there was a sufficient basis for a fact-finder to conclude that a flexible work schedule would have accommodated Ms. Solomon's disability. Indeed, she had informally operated on such a schedule on the sufferance of her regular supervisor, and met every work deadline. "While the Secretary argues (Br. 43) that Solomon's job involves 'tight, unpredictable, and firm deadlines,' Solomon answered with evidence that short deadlines are infrequent and, when they arise, can be met with a maxiflex schedule."

The panel also reverses summary judgment on Ms. Solomon's retaliation claims, holding (among other things) that the act of requesting in good faith a reasonable accommodation is itself a protected activity under 42 U.S.C. § 12203, which is incorporated into the Rehabilitation Act, per 29 U.S.C. § 791(g).

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