United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 17, 2014 Decided August 15, 2014

No. 12-5123

LINDA SOLOMON,

APPELLANT

v.

THOMAS J. VILSACK, 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.

Denise M. Clark and Les Alderman were on the brief for 

amicus curiae Metropolitan Washington Employment 

Lawyers Association in support of appellant. Alan R. Kabat

entered an appearance.

Brian P. Hudak, 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.
2

Before: HENDERSON and MILLETT, Circuit Judges, and 

GINSBURG, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge MILLETT.

MILLETT, Circuit Judge: Invoking the protections of the 

Rehabilitation Act of 1973, 29 U.S.C. §§ 701 et seq., Linda 

Solomon sought substantial flexibility in her working hours—

what is known as a “maxiflex” schedule—as an 

accommodation for her disability. She alleges that she 

informally enjoyed a similar accommodation for multiple 

months, and that her employer allowed at least one other 

employee in a comparable position in her office to work a

similarly flexible schedule. The Department of Agriculture 

nevertheless denied her request for such a flexible work 

schedule, and Solomon filed suit. The district court granted 

summary judgment to the Department on the ground that, as a 

matter of law, a maxiflex work schedule is an unreasonable 

accommodation request. The district court also rejected her 

retaliation claims on the related ground that, having sought 

what the court deemed to be an unreasonable accommodation, 

there could not have been retaliation as a matter of law. 

We reverse in part because the essential legal predicate of 

the district court’s decision was wrong. Nothing in the 

Rehabilitation Act establishes, as a matter of law, that a 

maxiflex work schedule is unreasonable. We leave open for 

resolution on remand the factual questions of whether or not a 

maxiflex schedule or other accommodations would have been 

reasonable in this case and whether or not Department 

employees retaliated against Solomon by denying her the 

ability to work late as she had previously been permitted to 

do. We affirm the balance of the district court’s judgment.
3

I. BACKGROUND

A. Statutory Framework

The Rehabilitation Act “was the first major federal 

statute designed to provide assistance to the whole population 

of” individuals with disabilities. Shirey v. Devine, 670 F.2d 

1188, 1193 (D.C. Cir. 1982). The Act’s purpose is to ensure 

that the federal government is “a model employer of 

individuals with disabilities,” 29 C.F.R. § 1614.203(a), and is 

proactive in their “hiring, placement, and advancement,” 29 

U.S.C. § 791(b). 

The Act, as amended, directs courts to employ the 

standards of the Americans with Disabilities Act of 1990, 42 

U.S.C. §§ 12101 et seq., in evaluating suits that, as relevant 

here, allege that an employer unlawfully denied an 

accommodation. See 29 U.S.C. § 791(g); see also 29 C.F.R. 

§ 1614.203(b) (applying to the Rehabilitation Act the 

standards in the Americans with Disabilities Act regulations, 

29 C.F.R. Part 1630). Specifically, the Rehabilitation Act 

requires federal employers to make “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). An “individual with a disability” 

includes a person with “a physical or mental impairment that 

substantially limits one or more major life activities.” Id.

§ 12102(1)(A). To be a “qualified individual” entitled to the 

Rehabilitation Act’s protections, 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.” Id. § 12111(8).

The Rehabilitation Act also forbids retaliation against or 

coercion of individuals who seek to vindicate the rights
4

guaranteed by the statute. The Act does so by making it 

unlawful both (i) to retaliate “against any individual because 

such individual has opposed any act or practice made 

unlawful by this chapter or because such individual made a 

charge, testified, assisted, or participated in any manner in an 

investigation, proceeding, or hearing under this chapter,” 42 

U.S.C. § 12203(a), and (ii) to “coerce, intimidate, threaten, or 

interfere with any individual in the exercise or enjoyment of, 

or on account of his or her having exercised or enjoyed, or on 

account of his or her having aided or encouraged any other 

individual in the exercise or enjoyment of, any right granted 

or protected by this chapter,” id. § 12203(b).

B. Factual Background

1. Starting in 1997, Linda Solomon worked as a budget 

analyst in the Administrative Programs Branch of the Budget 

Division within the Department of Agriculture’s Rural 

Development Mission Area. Solomon v. Vilsack, 845 F. 

Supp. 2d 61, 64 (D.D.C. 2012). She received a superior 

performance evaluation in 2003 from her direct supervisor,

Sylvia Booth, the Chief of the Administrative Programs 

Branch, and Booth’s supervisor Deborah Lawrence, the 

Director of the Budget Division. Solomon carried a higher 

workload than the other budget analysts in the office and rose 

to the level of senior budget analyst.

1

Solomon has a long history of depression dating back to 

the 1980s. Her illness intensified in late 2003 and early 2004

 1 While the ultimate determination of what happened in this case is 

for the trier of fact, in reviewing the grant of summary judgment to 

the Secretary, we view the evidence in the light most favorable to 

Solomon, drawing all reasonable inferences in her favor. See, e.g.,

Pardo-Kronemann v. Donovan, 601 F.3d 599, 604 (D.C. Cir. 

2010).
5

due to numerous personal hardships, and she began receiving 

treatment from a psychiatrist, Dr. Dennis Cozzens. Solomon, 

845 F. Supp. 2d at 64. Her deteriorating condition made it 

difficult for her to maintain her normal work schedule. On 

some days, Solomon woke up too sick to work until the 

afternoon, when her condition improved; on other days, she 

was able to work in the morning but not in the afternoon. As 

a result, Solomon was out of the office a significant amount of 

time in the first ten weeks of 2004. Id.

Despite her intensifying depression, Solomon continued 

to perform all of her job duties and to complete all of her 

work. She did so by using leave for hours missed during her 

normal duty schedule, and then working additional 

unscheduled hours without pay. For example, she would start 

work at 5:00 a.m. one day, or work until 10:00 or 11:00 p.m. 

the next. Solomon, 845 F. Supp. 2d at 68. When needed, she 

would take work home to meet a deadline. Because of her 

efforts, Solomon never missed a single work deadline 

throughout the acute phase of her illness. Nor were there any 

complaints about her work performance.

Booth knew that Solomon was working this modified 

schedule, and she signed Solomon’s bi-weekly time cards that 

reported the missed hours as charged leave. According to 

Solomon, her division also allowed a fellow budget analyst to 

work outside her normal duty hours. Solomon observed her 

fellow analyst arriving late and staying until 8:00 p.m., 

sometimes working late right alongside Solomon. Solomon, 

845 F. Supp. 2d at 68. 

In February 2004, Solomon obtained permission from 

Booth to hang a simple privacy curtain at the entry of her 

cubicle. She claimed that it was needed to minimize 

distraction and to aid her concentration. For that same reason, 
6

Solomon also asked that her cubicle be relocated to a quieter 

area, but the Department never acted on that request.

Throughout that same time, Solomon was also pursuing 

the informal grievance process with an Equal Employment

Opportunity (EEO) counselor to resolve what she viewed as 

discriminatory action by Booth and Lawrence in charging her 

with being absent without leave for 1.5 hours one day in 

December 2003. 

2. On March 2, 2004, Solomon emailed Booth, 

apologizing for her erratic leave and explaining that she was 

under a doctor’s care for a relapse of her chronic depression. 

Booth replied that, if Solomon’s condition required “special 

accommodations” and could impact her “normal duty 

schedule,” she should provide “medical documentation.” On 

March 29th, Solomon responded with a letter from 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.

Meanwhile, unable to come to a resolution with Booth 

and Lawrence with respect to her informal EEO grievance, 

Solomon received notice of her right to file a formal 

complaint on February 10, 2004. Solomon, however, made 

one last attempt to address the issue informally by emailing 

Lawrence’s superior on March 18, 2004. That effort failed 

four days later, when Arleen Christian, the Chief of the 

Human Resources Personnel Branch, instructed Lawrence’s 

superior that the matter would have to be resolved through the 

formal EEO process.
7

Just a few weeks later, on April 6th, Deborah Lawrence, 

in the company of William French, who was Booth’s 

successor as Chief of the Administrative Programs Branch,

rejected Solomon’s request for a flexible schedule as an 

accommodation for her disability. Lawrence’s memorandum 

asked that Solomon submit further “medical documentation” 

by April 16th to demonstrate “the existence of [her] medical 

condition and the necessity for the [requested] changes in 

duty location and hours of duty.” Solomon was unable to get 

Dr. Cozzens to submit further medical documentation in time 

to meet that ten-day deadline, but she alleges that 

management, including Lawrence, already was informed 

about her disabling condition—a fact that the Secretary does 

not dispute on appeal. The memorandum separately ordered 

Solomon to remove the privacy curtain from her cubicle on 

the ground that it “could cause harm to yourself and others.” 

3. On April 12th, Solomon filed a formal complaint of 

discrimination with the Department of Agriculture’s Office of 

Civil Rights referencing the December 2003 absent-withoutleave incident. She listed as the bases for discrimination 

“race, reprisal, color, age, [and] disability.” 

Eleven days later, on April 23rd, Solomon, though 

feeling unwell, went to work because she needed to finish a 

project. She arrived late. As before, she planned to stay late, 

without any additional compensation, to ensure the project’s 

timely completion. French was off that day, so Solomon

informed Norma Torres, her temporary direct supervisor,

about her plans. Torres and her supervisor sought instruction 

from Arleen Christian, the Human Resources Chief. At 

Christian’s direction, Solomon’s supervisors refused to allow

her to work past 6:00 p.m.
8

Angered and frustrated by that abrupt refusal to permit 

her to complete her work as she had previously been allowed, 

Solomon went home. Solomon, 845 F. Supp. 2d at 69. Too 

ill to work, Solomon wrote French on April 27th to inquire 

why her temporary supervisors had barred her from working 

late, and noting that she had been allowed to do so for months 

by her previous supervisor. French responded a week later, 

warning Solomon that she would be considered “absent 

without leave” until she provided medical documentation of 

her incapacitation. French also forbade Solomon to work past 

6:00 p.m. without his approval. Solomon continued to seek 

resolution of these issues with French. (Lawrence was out of 

the office on April 23rd through at least May 17th.) But

French, at the instruction of Christian, simply repeated that 

Solomon would remain absent without leave until she 

provided the requested documentation. According to Dr. 

Cozzens, “to a reasonable degree of medical certainty,” those 

actions “substantially worsened [Solomon’s] condition.” 

For the next month, Dr. Cozzens corresponded with 

Solomon’s supervisors. On May 10th, he updated them on

Solomon’s medical condition, explaining that her severe 

depression “has prevented her from attending work since her 

last appointment on 4/26/04,” and that her prognosis was 

“guarded.” On June 2nd, he advised them that Solomon 

remained unable to work due to continued psychiatric 

symptoms. Once Solomon’s condition improved, Dr. 

Cozzens explained, she could “return to work, initially on a 

part-time basis” as early as mid-July, if afforded appropriate 

accommodations. 

Throughout that same time, Solomon herself continued 

communicating with her supervisors. On May 26th, she 

emailed French, asking for permission “to telecommute on a 

part-time schedule.” When French forwarded Solomon’s 
9

request to Lawrence, Christian, and other management 

personnel in human resources, Christian recommended 

against it, and French denied the accommodation. Solomon

also repeatedly asked that she be advanced paid sick leave. 

While her supervisors denied that request, they did allow her 

to take substantial amounts of leave without pay and to 

participate in the Department’s leave donor program. 

Solomon, 845 F. Supp. 2d at 69–70.

Solomon subsequently applied for permanent disability 

retirement. Solomon, 845 F. Supp. 2d at 70. In her view, that 

was the only option left to her given the Department’s 

continued refusal to provide any of her requested 

accommodations. Her retirement took effect in January 2005.

C. Procedural History

After exhausting her administrative remedies, Solomon

filed suit against the Secretary of Agriculture, in his official 

capacity, in the United States District Court for the District of 

Columbia, alleging violations of the Rehabilitation Act, 29 

U.S.C. §§ 701 et seq., the Age Discrimination in Employment 

Act of 1967, 29 U.S.C. §§ 621 et seq., and Title VII of the 

Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. She

alleged, in particular, that the Secretary’s refusal to provide 

reasonable accommodations for her disability violated the 

Rehabilitation Act. See 29 U.S.C. § 791(g); 42 U.S.C. 

§ 12112(a) & (b)(5). She also alleged that her supervisors had 

unlawfully retaliated against her for engaging in activities

protected by the Rehabilitation Act, Title VII, and the Age 

Discrimination in Employment Act.

2

 

 2 See 42 U.S.C. § 12203(a) (as extended to the Rehabilitation Act, 

29 U.S.C. § 791(g)); 42 U.S.C. § 2000e-16(c); 29 U.S.C. § 633a(c); 
10

The district court initially granted summary judgment for 

the Secretary on the ground that Solomon’s receipt of 

disability retirement benefits was predicated on her showing

that she could not perform the duties of her position even if 

reasonably accommodated, and thus it precluded her 

Rehabilitation Act claims as a matter of law. Solomon v. 

Vilsack, 656 F. Supp. 2d 55, 57 (D.D.C. 2009). This court 

reversed, explaining that, because Solomon’s retirement 

application never stated that she would have been unable to 

work if she had been afforded the accommodations she 

sought, a jury could find that Solomon’s application was

consistent with her claim that “she could have worked in the 

spring and summer of 2004 with reasonable accommodation.” 

Solomon v. Vilsack, 628 F.3d 555, 565–567 (D.C. Cir. 2010).

On remand, the district court granted the Secretary’s

renewed motion for summary judgment. Solomon, 845 F. 

Supp. 2d at 77. The district court ruled that the flexible work 

schedule that Solomon principally requested was 

unreasonable as a matter of law. Id. at 71–73. The court then 

held that Solomon was not a “qualified individual” with a 

disability because she needed such an unreasonable 

accommodation to perform her job. Id. 

The district court also denied Solomon’s Title VII 

retaliation claim as legally precluded by the unreasonableness 

of the requested accommodation. The court further ruled that

Solomon failed to demonstrate a causal connection between 

her initiation in December 2003 of the EEO grievance process

and the later denials of her accommodation requests, and that 

Solomon could not base a retaliation claim on a mere showing 

that a requested accommodation was denied. Solomon, 845 F. 

Supp. 2d at 75–77. 

 

see also Gomez-Perez v. Potter, 553 U.S. 474, 477 (2008); 

Montgomery v. Chao, 546 F.3d 703, 706 (D.C. Cir. 2008).
11

Solomon timely appealed the district court’s judgment. 

II. STANDARD OF REVIEW

We review de novo the district court’s grant of summary 

judgment, and can affirm only if the record demonstrates both 

that “there is no genuine issue as to any material fact,” and

that “the moving party is entitled to a judgment as a matter of 

law.” Pardo-Kronemann v. Donovan, 601 F.3d 599, 604 

(D.C. Cir. 2010) (internal quotation marks omitted). Our task 

is not to “‘determine the truth of the matter,’ but to “decide 

only ‘whether there is a genuine issue for trial.’” Id. (quoting 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). 

We likewise review de novo the district court’s conclusion 

that a requested accommodation is unreasonable as a matter 

of law. See United States v. Berry, 618 F.3d 13, 16 (D.C. Cir. 

2010) (questions of law reviewed de novo).

III. SOLOMON’S ACCOMMODATION CLAIM

To avert summary judgment, Solomon had to come 

forward with sufficient evidence to allow a reasonable jury to 

conclude that (i) she was disabled within the meaning of the 

Rehabilitation Act; (ii) her employer had notice of her 

disability, see Crandall v. Paralyzed Veterans of America, 

146 F.3d 894, 896–897 (D.C. Cir. 1998); (iii) she was able to 

perform the essential functions of her job with or without 

reasonable accommodation, see 42 U.S.C. § 12112(b)(5)(A);

and (iv) her employer denied her request for a reasonable 

accommodation of that disability. See Stewart v. St. 

Elizabeths Hospital, 589 F.3d 1305, 1308 (D.C. Cir. 2010). 

In this case, the Secretary acknowledges that the 

Department of Agriculture was on notice of both Solomon’s 

medical condition and her request for a flexible work 

schedule. Secretary Br. 15–17. He also does not dispute that, 
12

on the current record, a reasonable jury could find that 

Solomon’s chronic depression, with the severe limitations it 

inflicted on her ability to work and to perform the routine 

activities of daily living, constitutes a “disability” within the 

meaning of the Rehabilitation Act. See Secretary Br. 13 

(describing how Solomon’s depression rendered it difficult or 

impossible for her to work “beginning in Spring 2004”). 

Most importantly, the Secretary does not deny that, if a 

maxiflex schedule were a reasonable accommodation for 

Solomon’s work as a budget analyst, a reasonable jury could 

conclude that Solomon could otherwise have performed all 

the essential functions of her job when she sought that 

accommodation in March 2004. 

Accordingly, 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. We hold that a jury could so find and that the 

district court’s conclusion that maxiflex is unreasonable as a 

matter of law was wrong.3

A. Flexible Work Hours Can Be A Reasonable

Accommodation

Determining whether a particular type of accommodation 

is reasonable is commonly a contextual and fact-specific 

inquiry. See Taylor v. Rice, 451 F.3d 898, 908 (D.C. Cir. 

2006) (“An accommodation may be ‘reasonable on its face’

 3 The Secretary argues that no reasonable jury could find that the 

Department denied Solomon’s request for a flexible schedule. 

Secretary Br. 44–45. Because the Secretary did not make that 

argument before the district court, it is forfeited. See Flynn v. 

Commissioner, 269 F.3d 1064, 1068–1069 (D.C. Cir. 2001).
13

* * * or it may be reasonable as applied, i.e., ‘on the 

particular facts’ of the case”) (quoting U.S. Airways, Inc. v. 

Barnett, 535 U.S. 391, 401, 405 (2002)) (emphasis added).

That is because the contours and demands of an employment 

position and the capacities of a workplace can vary materially 

from employer to employer. See McMillan v. City of New 

York, 711 F.3d 120, 126 (2d Cir. 2013) (rather than deciding 

cases “based on ‘unthinking reliance on intuition about the 

methods by which jobs are to be performed,’ a court must 

conduct ‘a fact-specific inquiry into both the employer’s 

description of a job and how the job is actually performed in 

practice’”) (citation omitted). 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). See EEOC v. Ford Motor Co., 752 F.3d 634, 641

(6th Cir. 2014) (because of “the advance of technology in the 

employment context,” “attendance at the workplace can no 

longer be assumed to mean attendance at the employer’s 

physical location”). For those reasons, it is rare that any 

particular type of accommodation will be categorically 

unreasonable as a matter of law. This case is no exception. 

Solomon requested a maxiflex schedule that would afford 

her the ability to come to work late on certain days or leave 

early on other days, as her condition required, as long as all 

her work was completed properly and in a timely and secure

manner. See generally U.S. OFFICE OF PERSONNEL 

MANAGEMENT, HANDBOOK ON ALTERNATIVE WORK 

SCHEDULES, available at http://www.opm.gov/policy-dataoversight/pay-leave/reference-materials/handbooks/alternative

-work-schedules/ (“maxiflex schedule” is one “that contains 

core hours on fewer than 10 workdays in the biweekly pay 

period and in which a full-time employee has a basic work 

requirement of 80 hours for the biweekly pay period, but in 
14

which an employee may vary the number of hours worked on 

a given workday or the number of hours each week within the 

limits established for the organization”). 

The Secretary argues, and the district court agreed,

Solomon, 845 F. Supp. 2d at 72, that the “ability to work a 

regular and predictable schedule” is, “as a matter of law, an 

essential element of any job,” Secretary Br. 38–39. That is 

incorrect. While the appropriateness of flexible working 

hours as an accommodation in any given case will have to be 

established, nothing in the Rehabilitation Act takes such a 

schedule off the table as a matter of law. Quite the opposite, 

the Rehabilitation Act, through its incorporation of the 

Americans with Disabilities Act’s standards, see 29 U.S.C. 

§ 791(g), is explicit that a “reasonable accommodation” may 

include “job restructuring” and “part-time or modified work 

schedules.” 42 U.S.C. § 12111(9)(B); see also 5 C.F.R. 

§ 610.111(d) (Office of Personnel Management regulations

permit agencies to establish flexible or compressed work 

schedules); U.S. OFFICE OF PERSONNEL MANAGEMENT, 

NEGOTIATING FLEXIBLE AND COMPRESSED WORK SCHEDULES

(July 1995) (federal employment regulations do not prescribe 

any “minimum or maximum amount of flexibility” with 

respect to work schedules established by federal employers). 

Our sister courts, too, have recognized that “[p]hysical 

presence at or by a specific time is not, as a matter of law, an 

essential function of all employment.” McMillan, 711 F.3d at

126 (emphasis added). Instead, “penetrating factual analysis” 

is required to determine whether a rigid on-site schedule is an 

essential function of the job in question. Id.; see also Ward v. 

Massachusetts Health Research Inst., Inc., 209 F.3d 29, 34–

35 (1st Cir. 2000) (employer must specifically prove that “a 

regular and reliable schedule” is an essential element of a 

position, which “requires a fact-intensive inquiry”). 
15

The Secretary, moreover, need only look around the 

neighborhood to witness both the availability and viability of 

maxiflex work schedules specifically within the federal 

government. The Office of Personnel Management, which is 

responsible for “executing, administering, and enforcing” 

rules and regulations governing federal employment, 5 U.S.C. 

§ 1103, has identified maxiflex as a potential option for 

qualifying federal employment positions. See HANDBOOK ON 

ALTERNATIVE WORK SCHEDULES, supra. In addition, the 

Chief of Human Resources for Solomon’s division admitted 

that “some agencies” provide maxiflex as a potential 

workplace option.

Both the district court and the Secretary invoked Carr v. 

Reno, 23 F.3d 525 (D.C. Cir. 1994), as establishing that a 

regular and predictable schedule is an essential function of all

jobs. That greatly overreads Carr. In that case, the evidence 

showed that Carr’s job required her to pick up and code 

papers for input into a computerized database at precisely 

4:00 p.m. each day. Id. at 527. Her disability caused her to 

miss work on short notice, often when commuting in the 

morning, and so incapacitated her that she was unable to 

perform even the basic task of calling in sick. Id. Carr’s 

frequent, unpredictable, and abrupt absences caused the lone 

remaining clerk undue hardship because that clerk, time and 

again and without warning, had to do twice the work in the 

same amount of time. Id. In addition, Carr conceded that her 

job involved “tight 4:00 p.m. deadlines.” Id. at 530. This 

court stressed that those unique and undisputed facts made 

Carr the “unusual Rehabilitation Act case that * * * can be 

resolved against the plaintiff without extensive fact finding.” 

Id. at 531 (emphasis added). 

Our categorization of Carr as “unusual” means it could 

not have been the genesis of a sweeping and categorical legal
16

rule against substantial flexibility in work hours. Subsequent 

precedent proves the point. In Breen v. Department of 

Transportation, 282 F.3d 839 (D.C. Cir. 2002), we held that 

Carr had no application to a case where (as here) the plaintiff 

sought a modified work schedule and did not “concede[] that 

there was a critical element of her position—such as a daily 

deadline—that rendered the accommodation she proposed 

ineffectual,” id. at 843. Because Breen “offered evidence 

disputing her employer’s claim that the job restructuring she 

proposed was incompatible with the essential functions of her 

position,” we reversed the grant of summary judgment. Id.

In the same vein is Woodruff v. Peters, 482 F.3d 521 

(D.C. Cir. 2007). Woodruff sought accommodations that, in 

the past, the agency had de facto afforded him: the ability to 

set his own schedule and to take breaks in the middle of the 

day. Id. at 528. Because Woodruff came forward with 

evidence that his job did not require him “to be physically 

present in the office,” and that he had successfully performed 

the “essential functions” of his job when he was previously 

afforded those accommodations, we held that “his case is at 

least strong enough to escape summary judgment.” Id. 

Accordingly, the district court’s holding that an “openended” or maxiflex schedule is “unreasonable as a matter of 

law,” Solomon, 845 F. Supp. 2d at 72, is incorrect. Whether a 

maxiflex or other flexible workplace schedule is a reasonable 

accommodation for a given employee in a given position is a 

case-by-case factual inquiry, not a foreordained legal

conclusion.

B. Solomon’s Flexible Hours Accommodation Claim

Survives Summary Judgment

Like the plaintiffs in Breen and Woodruff, Solomon 

discharged her duty of coming forward with evidence from 
17

which a reasonable jury could find that a strict work-hours 

regimen was not an essential function of her job. 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. Indeed, Solomon 

showed—and it was not disputed by the Secretary—that she 

met every single work deadline through April 23, 2004, by 

working such a flexible schedule. Solomon, 845 F. Supp. 2d 

at 68. Solomon reinforced that record with evidence that the 

Department had permitted a fellow budget analyst to work

similarly flexible hours. Id.; see also Langon v. Department 

of Health and Human Services, 959 F.2d 1053, 1060–1061

(D.C. Cir. 1992) (evidence undermined employer’s contention 

that the job had “short deadlines” and required “frequent faceto-face contacts,” creating “a genuine issue about whether, 

with the accommodation,” “Ms. Langon could perform the 

essential functions of her position”).

The district court acknowledged that Solomon never 

missed “any actual deadline” during the period at issue. 

Solomon, 845 F. Supp. 2d at 71–72. But the court dismissed 

that evidence, surmising that “it may have merely been good 

luck that [Solomon] was able to meet [her] deadlines with 

such extensive absences.” Id. at 72. Summary judgment 

cannot rest on such speculation about evidence. “By 

weighing the evidence and reaching factual inferences” in the 

Secretary’s favor, the district court “failed to adhere to the 

axiom that in ruling on a motion for summary judgment, 

‘[t]he evidence of the nonmovant is to be believed, and all 

justifiable inferences are to be drawn in h[er] favor.’” Tolan 

v. Cotton, 134 S. Ct. 1861, 1863, 1868 (2014) (per curiam)

(quoting Anderson, 477 U.S. at 255) (first alteration in 

original). 
18

In sum, Solomon discharged her summary-judgment duty 

of coming forward with sufficient evidence for a reasonable 

jury to find in her favor on all four elements of her 

accommodation claim, and for that reason we reverse the 

district court’s grant of summary judgment on that claim. We 

need not decide whether Solomon’s additional 

accommodation requests—for a privacy curtain, relocation of 

her cubicle, advance sick leave, and a part-time, 

telecommuting schedule—independently created jury 

questions. Those additional requests may have been intended 

as alternative or temporary accommodations, or as 

complements to the flexible schedule. We leave for the trier 

of fact the question whether Solomon’s requests, individually 

or collectively, would have enabled Solomon to perform the 

essential functions of her position without undue hardship to 

the Department. See Breen, 282 F.3d at 843 n.6.4

IV. SOLOMON’S RETALIATION CLAIMS

Solomon presses her retaliation claims under two 

theories: First, Solomon contends that her supervisors 

retaliated against her for pursuing the EEO grievance process. 

Second, she maintains that the Department, in violation of the 

Rehabilitation Act, retaliated against her for making 

accommodation requests. Solomon argues a jury could find 

that her supervisors retaliated against her for those protected 

activities by withdrawing her informal accommodations: that 

 4 Solomon argues in the alternative that, even if none of the 

accommodations she requested was reasonable, they were sufficient 

collectively to trigger the Department’s obligation to engage in the 

interactive process in an effort to find a reasonable accommodation 

for her. Solomon Br. 45–52. Because we conclude that a 

reasonable jury could find on this record that the Department 

denied Solomon a requested reasonable accommodation, we decline 

to reach that argument.
19

is, by banning her from working after 6:00 p.m., and by 

ordering her to remove her privacy curtain. She also argues 

that they retaliated by denying, after April 23rd, the 

accommodation requests she made for relocation of her 

cubicle, advance sick leave, and part-time telecommuting. 

Solomon Br. 53.

Because Solomon has come forward with sufficient 

evidence from which a jury could reasonably infer that her 

supervisors banned her from working after 6:00 p.m. in 

retaliation for requesting accommodations, we reverse the 

district court’s entry of summary judgment on that 

Rehabilitation Act retaliation claim. We affirm the grant of 

summary judgment with respect to her other retaliation 

claims.5

A. Preservation of the Retaliation Claims

The Secretary opens with a threshold challenge that 

Solomon never properly pleaded any distinct retaliation claim 

under the Rehabilitation Act, and that Solomon never alleged 

a retaliatory withdrawal (under any statute) of informal

accommodations that the agency previously afforded her. 

Secretary Br. 52, 54. Those arguments come too late.

Solomon argued her Rehabilitation Act retaliation claim 

in her opposition to the Secretary’s first motion for summary 

judgment. See Pl.’s Opp’n to Def.’s Mot. For Summ. J. at 2, 

ECF No. 29, No. 07-01590-JDB (D.D.C. May 8, 2009). The 

Secretary made no mention of a failure to plead then. See 

generally Reply in Supp. of Def.’s Mot. For Summ. J., ECF 

No. 34, No. 07-01590-JDB (D.D.C. June 8, 2009). 

 5 Solomon does not mention her retaliation claim under the Age 

Discrimination in Employment Act, so it is forfeited. See 

Schneider v. Kissinger, 412 F.3d 190, 200 n.1 (D.C. Cir. 2005).
20

Furthermore, in her previous appeal, Solomon expressly 

argued that her requests for accommodation constituted 

protected activity under the Rehabilitation Act, and that the 

Department of Agriculture denied those requests for 

retaliatory reasons. Solomon Br. 57–60, No. 09-5319 (D.C. 

Cir. June 9, 2010). Solomon also argued that the Department 

withdrew her informal accommodations in retaliation for her 

protected activity. Id. at 56–57. The Secretary again failed to 

argue that Solomon had in any way failed to procedurally 

preserve those claims, see Secretary Br. 56–60, No. 09-5319 

(D.C. Cir. Aug. 9, 2010), resulting in our repeated references 

to Solomon’s “distinct” retaliation claims under Title VII and 

the Rehabilitation Act. Solomon, 628 F.3d at 559–561, 567. 

To the extent the Secretary raised any forfeiture argument 

below, he did so for the first time in his reply brief during the 

second round of summary-judgment briefing—and even then, 

only with respect to “Solomon’s April 2004 Accommodations 

Claim[.]” Reply in Supp. of Def.’s Renewed Mot. For Summ. 

J. at 2–3, ECF No. 77, No. 07-01590-JDB (D.D.C. July 21, 

2011). 

By failing to argue forfeiture or a failure to properly 

plead the claims before the district court, the Secretary has—

in a word—forfeited his forfeiture argument here. See 

Lennon v. United States Theatre Corp., 920 F.2d 996, 1000 

(D.C. Cir. 1990) (party’s failure to challenge the absence of a 

necessary pleading under Rule 8 of the Federal Rules of Civil 

Procedure “in all likelihood waived any waiver defense”); see 

also Empagran S.A. v. F. Hoffman-LaRoche, Ltd., 388 F.3d 

337, 342–343 (D.C. Cir. 2004) (per curiam) (where defendant 

“fail[ed] to challenge the complaint under Rule 8, even after” 

claims were repeatedly asserted, the defendant had sufficient 

“notice regarding the [claims],” and the complaint

accordingly “complied with the Federal Rules”).
21

B. Merits of the Retaliation Claims

Where, as here, a plaintiff offers only circumstantial 

evidence of retaliation, her claim is governed by the burdenshifting framework of McDonnell Douglas Corp. v. Green,

411 U.S. 792, 802–808 (1973). See Jones v. Bernanke, 557 

F.3d 670, 677 (D.C. Cir. 2009). Under that framework, 

Solomon must “first establish a prima facie case of retaliation 

by showing” that (i) “[s]he engaged in statutorily protected 

activity”; (ii) “[s]he suffered a materially adverse action by 

h[er] employer”; and (iii) “a causal link connects the two.” 

Id. Once a prima facie case is established, the burden of 

production shifts to the employer to produce a “legitimate, 

nondiscriminatory reason” for its action. Wiley v. Glassman, 

511 F.3d 151, 155 (D.C. Cir. 2007). If the employer does so, 

the plaintiff must respond with sufficient evidence to “create[] 

a genuine dispute on the ultimate issue of retaliation either 

directly by [showing] that a discriminatory reason more likely 

motivated the employer or indirectly by showing that the 

employer’s proffered explanation is unworthy of credence.” 

Pardo-Kronemann, 601 F.3d at 604 (internal quotation marks 

omitted; second alteration in original).

The district court’s entry of summary judgment rested 

principally on the erroneous premise that Solomon, “as a 

matter of law,” “could not have been reasonably 

accommodated” and, therefore, the denials of her requested 

accommodations “cannot be ‘adverse[.]’” Solomon, 845 F. 

Supp. 2d at 75. Because that ruling was based on the flawed 

predicate holding that Solomon’s request for a maxiflex 

schedule was legally foreclosed, that rationale fails here as 

well.

In the alternative, the district court held that Solomon 

failed to establish a prima facie causal connection between
22

her December 2003 meeting with an EEO counselor and the 

denials in the Spring and Summer of 2004 of her various 

accommodation requests. However, we need not decide 

whether Solomon established a prima facie case of retaliation 

because the Secretary came forward with a legitimate, nonretaliatory justification for the Department’s actions. Once 

the Secretary did that, the burden-shifting framework fell

away, and now the “only question is the ‘ultimate factual 

issue in the case’”—retaliation “‘vel non.’” Jones, 557 F.3d 

at 678 (quoting United States Postal Service Bd. of Governors 

v. Aikens, 460 U.S. 711, 714–715 (1983)); see also Taylor v. 

Solis, 571 F.3d 1313, 1320 n.* (D.C. Cir. 2009) (once the 

employer asserts a legitimate, non-discriminatory reason, “the 

court need not—and should not—decide whether the plaintiff 

actually made out a prima facie case”) (internal quotation 

marks and citation omitted).

With respect to that ultimate factual issue, Solomon 

contends that a reasonable jury could infer retaliation from: 

(i) the withdrawal on April 23rd of her permission to work 

late, (ii) the withdrawal on April 6th of permission to use a 

privacy curtain, and (iii) the denials of her requests for 

accommodation. Solomon is correct with respect to her first 

argument, but not the other two.

1. Revocation of Permission to Work Late

Solomon contends that her supervisors withdrew her de 

facto flexible schedule, forbidding her to work late, in 

retaliation either for her filing of a formal EEO complaint 

eleven days earlier or for the accommodation requests she 

made. The Secretary responds by stating that the decision not 

to let her work late on April 23rd was made by temporary

supervisors who were unaware of any informal arrangements 

Solomon might have had with her regular supervisors, did not 
23

know about the formal complaint, and were advised by human 

resources to have her follow standard policy and work normal 

duty hours. While it would not be unreasonable for the trier 

of fact to accept that explanation, the question at this juncture 

is whether the record forecloses any other plausible 

conclusion. It does not.

First, Solomon came forward with “evidence 

discrediting” the Department’s proffered explanation for the 

refusal to let her work late. See Jones, 557 F.3d at 680. 

While the Secretary relied on the temporary status of the April 

23rd decisionmakers and their alleged ignorance of 

Solomon’s circumstances, Solomon showed—through 

French’s deposition and emails among management 

officials—that her permanent supervisor (French) ratified and 

formalized the revocation of her permission to work late after 

consulting with Human Resources Chief Arleen Christian. 

Christian was a permanent employee long familiar with 

Solomon’s situation, and French received an email from 

Solomon discussing her prior arrangement several days before 

he ratified the decision to revoke it. Thus, Solomon casts 

doubt on the Secretary’s proffered justification, and “we do 

not routinely require plaintiffs ‘to submit evidence over and 

above rebutting the employer’s stated explanation in order to 

avoid summary judgment.’” Hamilton v. Geithner, 666 F.3d

1344, 1351 (D.C. Cir. 2012) (quoting Aka v. Washington 

Hospital Center, 156 F.3d 1284, 1290 (D.C. Cir. 1998) (en 

banc)).

Second, Solomon’s evidence that another budget analyst 

had been allowed to work hours outside of her normal duty 

schedule and similar to those Solomon had been working 

would allow a jury to find that the Secretary’s they-were-justfollowing-policy justification was pretextual. Even the 

district court thought it “odd that Solomon’s supervisors 
24

voiced their objection not to her absence but to her presence, 

especially if other employees were permitted to work late.” 

Solomon, 845 F. Supp. 2d at 73. Such pretext evidence 

“‘usually’ is itself sufficient to allow a reasonable jury to infer 

retaliation.” Jones, 557 F.3d at 681 (quoting George v. 

Leavitt, 407 F.3d 405, 413 (D.C. Cir. 2005)). Indeed, “a 

plaintiff’s discrediting of an employer’s stated reason for its 

employment decision is entitled to considerable weight.” 

Aka, 156 F.3d at 1290; see Reeves v. Sanderson Plumbing 

Products, Inc., 530 U.S. 133, 147 (2000) (“In appropriate 

circumstances, the trier of fact can reasonably infer from the 

falsity of the explanation that the employer is dissembling to 

cover up a discriminatory purpose.”). 

Accordingly, we hold that Solomon came forward with 

sufficient evidence to preclude summary judgment on her 

claim that the revocation of her permission to work late was 

retaliatory. In so doing, we join our sister circuits in holding 

that the act of requesting in good faith a reasonable 

accommodation is a protected activity under 42 U.S.C. 

§ 12203, which is incorporated into the Rehabilitation Act, 

see 29 U.S.C. § 791(g).

6

 Cf. Mayers v. Laborers’ Health & 

 6 See, e.g., A.C. ex rel. J.C. v. Shelby County Board of Educ., 711 

F.3d 687, 698 (6th Cir. 2013); Cassimy v. Board of Educ., 461 F.3d

932, 938 (7th Cir. 2006); Coons v. Secretary of U.S. Dep’t of 

Treasury, 383 F.3d 879, 887 (9th Cir. 2004); Heisler v. 

Metropolitan Council, 339 F.3d 622, 632 (8th Cir. 2003); 

Shellenberger v. Summit Bancorp, Inc., 318 F.3d 183, 191 (3d Cir. 

2003); Wright v. CompUSA, Inc., 352 F.3d 472, 477 (1st Cir. 

2003); Weixel v. Board of Educ., 287 F.3d 138, 149 (2d Cir. 2002); 

Haulbrook v. Michelin N. America, 252 F.3d 696, 706 (4th Cir. 

2001); Selenke v. Medical Imaging of Colorado, 248 F.3d 1249, 

1265 (10th Cir. 2001); Standard v. A.B.E.L. Servs., Inc., 161 F.3d 

1318, 1328 (11th Cir. 1998); see also EEOC v. Chevron Phillips 

Chem. Co., 570 F.3d 606, 620 n.9 (5th Cir. 2009) (noting 
25

Safety Fund, 478 F.3d 364, 369 (D.C. Cir. 2007) (assuming 

that accommodation requests are a protected activity under 

the Americans with Disabilities Act). 

Solomon also presses as an additional theory of 

retaliation the temporal proximity of her filing of a formal 

EEO complaint on April 12th to the revocation eleven days 

later of her ability to work late. But that complaint involved 

the absent-without-leave incident with Lawrence, who was 

out of the office on April 23rd and the ensuing weeks when 

French ratified the decision to prohibit Solomon from 

working late. Therefore, a reasonable jury could not find that 

the April 12th EEO filing motivated Christian’s and French’s 

decision to revoke Solomon’s permission to work late. For 

that reason, Solomon’s surviving retaliation claim is that her 

requests for accommodation motivated her supervisors to 

revoke her permission to work late. 

2. Removal of Privacy Curtain

Solomon’s claim that the April 6th order to remove her 

privacy curtain was retaliatory does not survive summary 

judgment. The Secretary came forward with a legitimate, 

non-retaliatory reason for that action, pointing to Lawrence’s 

expressed concern with keeping the entrances to cubicle work 

spaces free from obstruction. 

Solomon has no answer to that justification other than the 

order’s temporal proximity to her informal attempt to resolve 

 

uniformity among the circuits that have decided the issue); 9 LEX 

K. LARSON, EMPLOYMENT DISCRIMINATION § 154.10, at p. 154-

105 & n.25 (2d ed. 2014) (“In addition to the activities specifically 

protected by the statute, courts have found that requesting 

reasonable accommodation is a protected activity.”).
26

her complaint with Lawrence’s superior. While Solomon

points out that her then-supervisor, Booth, had allowed her to 

install the curtain, it was Lawrence, not Booth, who ordered 

the curtain’s removal. Solomon neither contends nor 

evidences that Lawrence knew Booth had authorized its 

installation. Nor does Solomon point to any evidence 

suggesting that Lawrence’s safety justification was pretextual, 

such as evidence that other employees had similar 

obstructions in the entrances to their cubicles.

Because Solomon lacks “positive evidence beyond mere 

proximity,” she has failed to create a genuine issue of material 

fact concerning whether the motive for the ordered removal 

was safety or retaliation. Woodruff, 482 F.3d at 530.

3. Denials of Accommodation Requests

Solomon’s remaining retaliation claims cannot survive 

summary judgment. For each allegedly retaliatory denial of 

an accommodation request, the Secretary came forward with 

evidence of a legitimate, non-retaliatory justification that 

Solomon has left unanswered. Specifically, with respect to 

Solomon’s request for advance sick leave, the Secretary 

explained that her request did not comply with agency policy 

because it failed to indicate when or whether she would be 

able to return to work. Plus Solomon was provided with 

unlimited leave without pay and participation in the leave 

donor program instead. 

Solomon also presses the requested relocation of her 

cubicle. The Department of Agriculture never had a chance 

to process that request, however, because Solomon made it 

six weeks before she left work on April 23rd and never 

returned. 
27

Finally, Solomon points to her requests in late May to 

telecommute or to work part-time. But for that period of 

time, correspondence from Solomon herself and Dr. Cozzens 

led Solomon’s supervisors to believe that her condition had 

deteriorated to the point that she was medically unable to 

work in any capacity. Even if the supervisors incorrectly 

assessed Solomon’s condition, and the Department was thus 

obligated to provide reasonable accommodation, Solomon 

must still present evidence casting doubt on the sincerity of 

the Department’s proffered non-retaliatory justification for its 

action. “Once the employer has articulated a nondiscriminatory explanation for its action * * *, the issue is not 

the correctness or desirability of the reasons offered but 

whether the employer honestly believes in the reasons it 

offers.” See Fischbach v. District of Columbia Dep’t of 

Corrections, 86 F.3d 1180, 1183 (D.C. Cir. 1996) (citation 

and internal punctuation omitted).

In response to those explanations, Solomon offers only 

conclusory statements, Solomon Reply Br. 32, devoid of 

citation to the record, and from which no reasonable jury 

could make the desired inference that the Secretary’s 

“justifications were mere pretext,” Smith v. District of 

Columbia, 430 F.3d 450, 455 (D.C. Cir. 2005), or that a 

retaliatory reason “more likely motivated” his actions, PardoKronemann, 601 F.3d at 604 (internal quotation marks 

omitted).

* * * * *

For the foregoing reasons, we (i) reverse the district 

court’s entry of summary judgment on Solomon’s 

accommodation claim, (ii) reverse the entry of summary 

judgment on her claim that revoking her permission to work 

late was in retaliation for requesting accommodations, and 
28

(iii) remand those claims for further proceedings. We affirm 

the balance of the district court’s grant of summary judgment.

So ordered.