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 TRANSPORTATION,

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 appearances.
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 reconsider 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 telecommuting 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 proceeding 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 agreement 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

1While 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).

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 Woodruff. 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-
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 provided. 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 circumstances,” 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 continuing 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 illfounded. 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 Government 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 individual 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 subsequent 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 discrimination 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 discrimination, “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 Employment Opportunity Commission (“EEOC”) promulgated 29

C.F.R. § 1614.105, which requires employees alleging discrimination based on a “handicap” to “initiate contact with a Counselor 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 Counselor 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 discriminate 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, conditions, and privileges of employment.” 42 U.S.C. § 12112(a).

Here, “discriminate” is defined to include “not making reasonable accommodations to the known physical or mental limitations 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 affirmative 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 discrimination under 42 U.S.C. § 12112(b)(5)(A). But the two statements are interconnected, as Woodruff’s status as a qualified

individual with a disability depends on what tasks he can

perform given reasonable accommodation. SeeCarr 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 reasonable 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 proceedings 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 Woodruff 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 Handbook anticipates “[e]mployees may telecommute . . . as frequently 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 supposed 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 framework to retaliation claims under the Rehabilitation Act when

employers assert non-retaliatory grounds for adverse employment 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 preponderance 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. Subsequently, 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 calculation, 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, fulltime 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

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.

. . . [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 nonstandard arrangement.

At this stage, “the McDonnell Douglas framework disappears,” 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
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

3While 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.

was “highly exaggerated” is belied by Woodruff’s own Summary Judgment Exhibit 18, in which he reports a break of twoand-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 supervisors 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
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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 Corrections, 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 explanation 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.