United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 19, 2015 Decided December 29, 2015

No. 14-7118

PENELOPE MINTER,

APPELLANT

v.

DISTRICT OF COLUMBIA,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:10-cv-00516)

Emre N. Ilter argued the cause for appellant. On the brief

were Michael S. Nadel and Johnny H. Walker. 

Richard S. Love, Senior Assistant Attorney General, Office

of the Attorney General for the District of Columbia, argued the

cause for appellee. With him on the brief were Karl A. Racine,

Attorney General, Todd S. Kim, Solicitor General, and Loren L.

AliKhan, Deputy Solicitor General.

Before: GARLAND, Chief Judge, ROGERS, Circuit Judge,

and EDWARDS, Senior Circuit Judge.
2

Opinion for the Court filed by Chief Judge GARLAND.

GARLAND, Chief Judge: Appellant Penelope Minter sued

the District of Columbia for alleged violations of the Americans

with Disabilities Act (ADA) and the Rehabilitation Act. The

district court granted summary judgment in favor of the District. 

We affirm.

I

Minter suffered from sarcoidosis and related sarcoid

arthritis that made it difficult for her to maintain a regular fortyhours-per-week work schedule. At a meeting in September

2006, she asked her employer, the District of Columbia Office

of the Chief Medical Examiner (OCME), about working a

reduced schedule as a way of accommodating her disability. 

Unfortunately, while the Office’s ADA Coordinator was looking

into the possibility of an accommodation, Minter slipped on a

newly waxed floor and sustained a serious injury that severely

aggravated her preexisting conditions. The new injury occurred

on September 26. On December 1, Minter had a second meeting

with the ADA Coordinator, Sharlene Williams, during which

Minter contends that Williams said a reduced schedule would

not be a reasonable accommodation, but also requested Minter’s

medical records “so that she could decide.” Minter Dep. 255-56

(Nov. 13, 2012) (J.A. 56). 

Thereafter, in December and January, Minter took several

weeks off from work on account of her September injury. In

February 2007, she stopped working altogether. Between

February and May, OCME sent Minter several letters requesting

documentation of her injury; Minter did not provide any. In

June, OCME told her that she would have to report to duty or

provide medical documentation of her injury. If she did neither,
3

OCME said, it would have to find her absent without leave and

subject to disciplinary action. 

Minter finally responded by faxing her employer a

physician’s “Disability Certificate,” dated June 19, 2007, stating

that Minter’s injury had left her “Totally Disabled” since

September 26, 2006 and that she would be so disabled

“indefinitely.” Disability Certificate (J.A. 284).1 Minter

advised OCME that she “hope[d]” to return to work by

September 2007. James Dep. 103 (J.A. 224) (testimony of

Minter’s supervisor quoting cover letter attached to the faxed

disability certificate). Unwilling to wait any longer for Minter’s

uncertain return, OCME terminated her employment.

Minter brought suit under the Americans with Disabilities

Act, 42 U.S.C. §§ 12101 et seq., and the Rehabilitation Act, 29

U.S.C. §§ 791 et seq., alleging that the District: (1) unlawfully

refused to accommodate her disability, and (2) retaliated against

her for requesting an accommodation by terminating her

employment.2

 The district court granted summary judgment for

the District on the grounds, inter alia, that no reasonable jury

could find either that Minter was a qualified individual for

purposes of the ADA and the Rehabilitation Act, or that Minter

1

 The disability certificate was contained in a sealed appendix. 

Because unsealing is required to explain our decision, we unseal the

cited page. The substance of the certificate is already in the public

record. See Minter v. District of Columbia, 62 F. Supp. 3d 149, 159

n.9 (D.D.C. 2014); Minter Br. 20-21; District Br. 13, 29.

2

 Minter’s complaint also cited the District of Columbia Human

Rights Act (DCHRA), D.C. Code §§ 2-1401.01 et seq. Neither she

nor the district court treated that statute as requiring an analysis

different from that required by the above-cited federal statutes, nor

does she so contend on appeal. We therefore do not separately address

her DCHRA claim.
4

was terminated because of her accommodation request. Minter

v. District of Columbia, 62 F. Supp. 3d 149, 167-68 (D.D.C.

2014).3

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 if

“there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” FED.R.CIV.

P. 56(a); 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 nonmoving

party.” Anderson, 477 U.S. at 248. 

II

We first address Minter’s claim that the District of

Columbia unlawfully refused to accommodate her disability. 

The ADA and the Rehabilitation Act require the District to

“mak[e] reasonable accommodations to the known physical or

mental limitations of an otherwise qualified individual with a

disability.” 42 U.S.C. § 12112(b)(5)(A) (ADA provision); 29

U.S.C. § 794(d) (Rehabilitation Act provision incorporating

ADA standards); see Solomon v. Vilsack, 763 F.3d 1, 5 (D.C.

Cir. 2014); Stewart v. St. Elizabeths Hosp., 589 F.3d 1305, 1307

3

 The district court also found that Minter’s failure-toaccommodate claims were untimely filed. Minter, 62 F. Supp. 3d at

161-65. Because the other grounds for granting summary judgment

are sufficient, we do not reach the timeliness issues.
5

(D.C. Cir. 2010).4 Accordingly, to win on this claim, Minter

must show both that the District refused to accommodate her

disability, and that she was a “qualified individual,” 42 U.S.C.

§ 12112(b)(5)(A). See Solomon, 763 F.3d at 9.

Minter alleges that the District first denied her request for

an accommodation on December 1, 2006, during a meeting with

ADA Coordinator Williams. Minter Br. 9-10. She has not,

however, raised a genuine dispute that her request was denied on

that day. 

Minter’s own description of the December 1 conversation

acknowledges that Williams requested more information about

her injury, which indicates that Williams was trying to obtain

information she needed to decide what to do -- not that she had

already made a decision. Thereafter, Williams sent Minter a

string of e-mails, urging her to keep her appointment for a

follow-up meeting on December 5 and telling Minter that

Williams needed more information about “what

accommodations are needed.” E-mail Chain Between Sharlene

Williams and Penelope Minter (Dec. 1-5, 2006) (J.A. 235-36). 

It is undisputed that Minter failed to keep her appointment;

failed to provide any further information until her June

physician’s letter; and did not “raise[] her need for

accommodation between December 2006 and June 2007.” 

Minter Reply Br. 12-13. 

Thus, far from finally denying Minter’s request for an

accommodation, the record shows that Williams was engaged in

the “interactive process” that is often necessary to determine a

reasonable accommodation. See Mogenhan v. Napolitano, 613

F.3d 1162, 1167-68, 1167 n.4 (D.C. Cir. 2010) (quoting 29

4 See also 29 U.S.C. §§ 705(34), 794(a) & (b)(1)(A) (application

to the District of Columbia).
6

C.F.R. § 1630.2(o)(3)); see also Ward v. McDonald, 762 F.3d

24, 31-33, 33 n.3 (D.C. Cir. 2014); Stewart, 589 F.3d at

1308-09. To “establish that her request was ‘denied,’ [a

plaintiff] must show either that the [agency] in fact ended the

interactive process or that it participated in the process in bad

faith.” Ward, 762 F.3d at 32. Minter has failed to proffer any 

evidence that would raise a genuine dispute as to that question. 

See id. at 33 n.3 (affirming summary judgment, despite the

plaintiff’s testimony that her request for an accommodation was

denied at a meeting, because a follow-up letter from the

employer showed that “her accommodation request was still

under consideration”).

Minter alleges that the District denied her request for an

accommodation a second time during a June 1, 2007, telephone

call about her extended absence. The problem with a claim

based on a June 1 denial is that Minter was indisputably not a 

a “qualified individual” as of that date. 

As is relevant here, the term “qualified individual” means

“an individual who, with or without reasonable accommodation,

can perform the essential functions of the employment position

that such individual holds.” 42 U.S.C. § 12111(8); see Doak v.

Johnson, 798 F.3d 1096, 1105 (D.C. Cir. 2015). The plaintiff

must establish her ability to perform those functions (with or

without reasonable accommodation) at the time the employer

denied her request for accommodation. See Basden v. Prof’l

Transp., Inc., 714 F.3d 1034, 1037 (7th Cir. 2013) (holding that

a plaintiff’s “ability to come to work, or to otherwise perform

the essential functions of her job, is examined as of the time of
7

the adverse employment decision at issue”).5 This Minter did

not do.

It is undisputed that as of June 1, 2007, Minter had not

performed a single day of work in more than three months. The

only other evidence in the record regarding her ability to

perform her employment functions on that date was her

physician’s certificate of June 19, 2007, which stated that she

was and had been “Totally Disabled” since her injury on

September 26, 2006. The June certificate further stated that she

was disabled “indefinitely.” And the most that Minter herself

could say later that month was that she “hope[d]” to return in

another three months. 

Accordingly, there can be no genuine dispute that Minter

was not a qualified individual on June 1. See 42 U.S.C.

§ 12111(8) (defining “qualified individual” as one who can, with

or without reasonable accommodation, “perform the essential

functions” of her position); see also EEOC, No. 915.002,

Enforcement Guidance: Reasonable Accommodation and Undue

Hardship Under the Americans with Disabilities Act (2002),

available at 2002 WL 31994335, at *21 (stating that “six

months is beyond a ‘reasonable amount of time’” to retain a

non-performing employee). And because she was not a

5 See also Flemmings v. Howard Univ., 198 F.3d 857, 858, 861-

62 (D.C. Cir. 1999) (holding that a date at which the plaintiff was

“wholly unable to work either with or without an accommodation . . .

fell beyond the scope of the ADA’s protection”); 29 C.F.R.

§ 1630.2(m) app. (EEOC Interp. Guidance) (“The determination of

whether an individual with a disability is qualified . . . should be based

on the capabilities of the individual . . . at the time of the employment

decision.”); Oral Arg. Recording at 25:00-10 (statement by Minter’s

counsel agreeing with this proposition).
8

“qualified individual,” the district court properly granted

summary judgment against her refusal-to-accommodate claim.

III

Minter’s second claim is that, by terminating her, the

District unlawfully retaliated against her for seeking an

accommodation for her disability. Such retaliation, if it had

occurred, would have been prohibited by the ADA and the

Rehabilitation Act. See 29 U.S.C. § 794(d); 42 U.S.C.

§ 12203(b); see also Doak, 798 F.3d at 1099; Solomon, 763 F.3d

at 5, 14-16. To establish a retaliation claim, Minter must show,

inter alia, that there “existed a causal link” between her

termination and her request for an accommodation. See Smith

v. District of Columbia, 430 F.3d 450, 455 (D.C. Cir. 2005).

The District states that it terminated Minter, not because she

requested an accommodation, but because she effectively

abandoned her job. She did so, it maintains, by failing to report

to work from February to June 2007 and failing to provide

medical documentation supporting her absence --

notwithstanding repeated requests to do so during that period. 

See District Br. 38-39; see also Minter, 62 F. Supp. 3d at 168

(describing the District’s position in the trial court). When she

finally did provide a physician’s certificate, it stated that she had

been “Totally Disabled” since September and would be so

“indefinitely.” Disability Certificate (J.A. 284). Without

elaboration or support, Minter’s cover letter advised OCME that

she “hope[d] to return by the beginning of September,

depending on present treatment.” James Dep. 103 (J.A. 224). 

Because “an essential function of any government job is an

ability to appear for work,” Carr v. Reno, 23 F.3d 525, 530

(D.C. Cir. 1994), the District’s explanation for terminating

Minter was legitimate, and no reasonable jury could conclude

otherwise. 
9

Where, as here, “an employer asserts a legitimate,

nondiscriminatory reason for an adverse employment action,”

the remaining question is “whether the plaintiff produced

sufficient evidence for a reasonable jury to find that the

employer’s asserted non-discriminatory reason was not the

actual reason and that the employer intentionally discriminated

against the plaintiff on a prohibited basis.” Adeyemi v. District

of Columbia, 525 F.3d 1222, 1226 (D.C. Cir. 2008). Minter

contends that she produced such evidence by showing that there

was a conflict between the rationale for termination the District

gave in this litigation and the rationale Beverly Fields, OCME’s

Chief of Staff, described in her deposition. That alleged

conflict, Minter argues, indicates that the District’s

nonretaliatory reason was “‘unworthy of credence.’” Minter Br.

30 (quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S.

248, 256 (1981)). 

To support her claim of conflicting rationales, Minter points

to Fields’ deposition, in which Fields testified that Minter was

terminated because:

We have to have work done. We’re not getting any

response from the employee for months, and the

employee is not reporting to work. So, the agency has

to have the work done and with all of the efforts that

we made to attempt to get documentation from the

employee, hear from the employee about what was

going on with her, we had to make a decision to move

forward so that we could get the work done.

Fields Dep. 94 (J.A. 283). Minter reads this testimony as saying

that the District terminated her solely because she failed to

provide the necessary documentation about her injury, while the

District now claims that it terminated her for failing to provide

adequate documentation and for failing to report to work. We
10

do not believe that a reasonable jury could perceive such a

conflict. See Fields Dep. 94 (J.A. 283) (referring both to “the

efforts that we made to attempt to get documentation from the

employee” and to Minter “not reporting to work”).6

Even if there were some inconsistency in the proffered

rationales, Minter would still need to prove that the “actual

reason” for her termination was retaliatory. Adeyemi, 525 F.3d

at 1226. Nothing in the minor inconsistency that Minter alleges,

however, supports such an inference. Instead, Minter relies on

the “temporal proximity,” Solomon, 763 F.3d at 16, between her

second request for accommodation and her termination. But

when an employer comes forward with a legitimate,

nonretaliatory reason for an employment action, “positive

evidence beyond mere proximity” is required “to create a

genuine issue of material fact concerning whether the motive for

[an adverse employment action] was . . . retaliation.” Id.; see

Doak, 798 F.3d at 1107-08; Hamilton v. Geithner, 666 F.3d

1344, 1359 (D.C. Cir. 2012). That is particularly true in a case

like this one, in which the request for accommodation came

during the same period in which the employee was entirely

unable to perform the functions of her position even with an

accommodation. Because Minter did not proffer any such

evidence, the district court properly granted summary judgment

against her retaliation claim.

6

 Although it is unclear, Minter’s brief may also be read to argue

that the District’s reason for her firing was pretextual because Fields

said OCME never received any medical documentation when, in fact,

it received the disability certificate. Fields’ testimony, however, was

that something “may have” eventually come in from Minter’s doctor,

but that “it may not have been enough.” Fields Dep. 93 (J.A. 282).
11

IV

For the foregoing reasons, the judgment of the district court

is

Affirmed.