Thompson v. Rice

305 F. App'x 665
CourtCourt of Appeals for the D.C. Circuit
DecidedDecember 30, 2008
DocketNo. 06-5124
StatusPublished
Cited by2 cases

This text of 305 F. App'x 665 (Thompson v. Rice) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Thompson v. Rice, 305 F. App'x 665 (D.C. Cir. 2008).

Opinion

JUDGMENT

PER CURIAM.

This appeal from a judgment of the United States District Court for the District of Columbia was presented to the court, and briefed and argued by counsel. The court has accorded the issues full consideration and has determined that they do not warrant a published opinion. For the reasons presented in the accompanying memorandum opinion, it is

ORDERED AND ADJUDGED that the grant of summary judgment be affirmed.

Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41.

MEMORANDUM

Appellant contends that the district court erred in granting summary judgment on the grounds that she was neither disabled nor regarded as disabled within the meaning of the Rehabilitation Act of 1973 (“the Act”), 29 U.S.C. § 705(20)(B), and that she did not request a reasonable accommodation from her employer. She does not challenge summary judgment on her claim that the State Department intentionally discriminated against her on the basis of disability by failing to appoint her to postings in Paris and Frankfurt. Assuming that appellant suffered from a qualifying disability under the Act, we affirm upon de novo review. See Wilburn v. Robinson, 480 F.3d 1140, 1148-49 (D.C.Cir.2007).

Section 501(b) of the Act requires agencies to take affirmative steps to make accommodations for qualified persons with disabilities. 29 U.S.C. § 791(b); see Carr v. Reno, 23 F.3d 525, 528 (D.C.Cir.1994); 29 [667]*667C.F.R. § 1680.9(a). To survive summary-judgment on a reasonable accommodation claim under the Act, a plaintiff must proffer evidence from which a reasonable fact finder could find that (1) she had a qualifying disability, (2) her employer had notice of the disability, (3) with reasonable accommodation she could perform the essential functions of the position, and (4) she requested an accommodation but the employer denied her request. See Barth v. Gelb, 2 F.3d 1180, 1186-87 (D.C.Cir.1993); Flemmings v. Howard Univ., 198 F.3d 857, 861 (D.C.Cir.1999). We will assume that appellant met her burden on the first two elements.

As evidence of a request for an accommodation due to a qualifying disability, appellant relies on letters from her lawyer and neurologist to the State Department and a medical questionnaire she completed after she suffered a Grade 1 subarachnoid hemorrhage (“SAH”). The evidence, taken in the light most favorable to appellant, showed that she had spent two days in the hospital and taken several weeks of sick leave as a result of the SAH. Around the time that she returned to work in early November 2001, appellant’s lawyer and neurologist wrote to the State Department regarding her SAH. However, those letters do not mention that appellant was suffering from fatigue as would affect her ability to work or carry on major life activities. Rather, the letters claimed that appellant could suffer another hemorrhage or other serious health problems if she were subjected to “undue stress” or a “hostile work environment.” Letter from William T. Irelan, Freidman, Irelan, Ward & Lamberton, P.C., to Larry J. Eisenhart, Deputy CFO, Dep’t of State, at 1 (Oct. 24, 2001) (“Irelan Letter”); Letter from Sam Oraee, M.D., Neurological Ctr. of N. Va., to Grant S. Green, Under Sec’y of Mgmt., Dep’t of State (Nov. 16, 2001). Her lawyer’s letter specifies that the source of the stress and hostility for which appellant required an accommodation was the harassment she had allegedly suffered from her colleagues in the Internal Financial Services (“IFS”) in the Bureau of Financial Management Policy and a resulting internal investigation of the alleged misconduct. Appellant’s lawyer also claimed that assigning her on detail and asking staff to refrain from discussing an ongoing investigation would not satisfy the department’s obligation “to accommodate [appellant’s] medical condition.” Irelan Letter at 2. Indeed, at her deposition, appellant described the letters sent in October and November 2001 as requests to resolve the hostile work environment. See Thompson Dep. 34, 37, Sept. 3, 2004.

As to the questionnaire, after she returned to work, appellant was placed on a temporary work detail in the Human Resources office that continued until she was posted to Berlin for six weeks in May 2002. Prior to her posting in Berlin, she had sought assistance in resolving her work assignment issues, see Letter from Barbara Pope, Assistant Sec’y, Office of Civil Rights, to Jill Thompson (Mar. 15, 2002), and submitted the questionnaire. In the questionnaire appellant stated, “[m]y difficulties do not relate in any way to assigned duties in my Work Requirements Statement” because she was working without such a statement; she also explained that she was not requesting a change in her job. Medical Questionnaire at 1, Mar. 21, 2002. Rather, she advised that she was in the process of bidding for “another foreign service assignment,” and stated, “[i]n the bidding process, I would like the State Department’s support in following my doctor’s instructions [noted] below.” Id. Her neurologist advised that appellant reported suffering from “excessive fatigue” and “occasional headaches,” and opined that “[i]f the fatigue she is now experiencing is not a [668]*668secondary effect of the SAH, [appellant] should be able to effect a full recovery and pursue a normal work routine.” Id. at 2. He further advised that:

She should be able to continue working a 40-hour week at the State Department in any position for which she is qualified. I recommend that she be given a certain amount of discretion in managing her workload. If possible, she should be placed in an office, which is “employee friendly” and does not in its circumstances represent the appearance or perception of any directed hostility against her.

Id. at 3.

Assuming without deciding that appellant is disabled under the Act because she suffers from chronic fatigue that substantially limits her ability to sleep, work, and live independently, see Desmond v. Mukasey, 530 F.3d 944, 958-59 (D.C.Cir.2008), this evidence is insufficient to raise a genuine issue as to whether she requested a reasonable accommodation that the department rejected. “An underlying assumption of any reasonable accommodation claim is that the plaintiff-employee has requested an accommodation which the defendant-employer has denied.” Flemmings, 198 F.3d at 861.

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305 F. App'x 665, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thompson-v-rice-cadc-2008.