Court Revives Rehabilitation Act Claims Of Federal Worker Denied ‘Maxiflex' Hours

By Kevin McGowan

Aug. 15 - A federal agency budget analyst with depression may be entitled to a "maxiflex" schedule as a reasonable accommodation for her disability under the Rehabilitation Act, the U.S. Court of Appeals for the District of Columbia Circuit ruled Aug. 15.

Reviving a lawsuit filed against the U.S. Department of Agriculture, the D.C. Circuit said a district court erred in ruling a disabled employee's request for a flexible schedule allowing her to work hours outside the prescribed workday on short notice as long as she met agency deadlines could never be a "reasonable" accommodation under the Rehabilitation Act, which is analyzed the same as the Americans with Disabilities Act.

"Nothing in the Rehabilitation Act establishes, as a matter of law, that a maxiflex work schedule is unreasonable," Judge Patricia Millett wrote for a unanimous panel.

"We leave open for resolution on remand the factual question of whether or not a maxiflex schedule or other accommodation would have been reasonable in this case and whether or not [department] employees retaliated against [plaintiff Linda] Solomon by denying her the ability to work late as she previously had been permitted to do," the court said.

Consistent With EEOC's Approach

The court's decision is significant because it breaks down what constitutes "reasonable" accommodation and what employers and courts must review to make that determination, said Denise M. Clark, a Washington plaintiffs' lawyer who contributed to an amicus brief submitted by the Metropolitan Washington Employment Lawyers Association.

The district court in Solomon's case seemed to "meld" the reasonable accommodation and undue hardship inquiries, and the D.C. Circuit makes clear "it's a separate analysis" whether an employee's proposed accommodation is reasonable, Clark told Bloomberg BNA Aug. 15.

The D.C. Circuit also makes clear it's not a "per se rule" that flexible work hours will be deemed unreasonable, a position Clark said is consistent with how the Equal Employment Opportunity Commission approaches accommodation issues arising under the ADA.

In its opinion, the D.C. Circuit cited the recent decision in EEOC v. Ford Motor Co., 752 F.3d 634, 29 AD Cases 1140 (6th Cir. 2014), to support the court's view that technological advances and the "evolving nature" of the workplace mean it's less essential for employees in many jobs to be physically present at work during prescribed hours to successfully perform their jobs.

Meanwhile, John F. Karl Jr., who represents Solomon, said he is "delighted and excited" she finally will have the opportunity to present her claims to a jury.

It's "too bad" the agency in 2004 refused to grant Solomon an accommodation even though other budget analysts worked flexible hours and Solomon had such a "laudable" work ethic she met all her deadlines during the 2003-2004 period when her depression symptoms worsened, Karl told Bloomberg BNA Aug. 15.

On remand, Solomon will be seeking damages representing the difference between what she would have made as a budget analyst and her benefits on disability retirement, Karl said.

A spokesman for the U.S. attorney's office in Washington, which represented the USDA, said the office is reviewing the opinion but declined further comment.

'Reasonable' Is Case-Specific Inquiry

In granting summary judgment to the USDA, the district court said, "The ability to work a regular and predictable schedule" is "as a matter of law, an essential element of any job." The court ruled Solomon therefore hadn't proposed a "reasonable" accommodation and the USDA was entitled to judgment on her denial of accommodation and retaliation claims.

The D.C. Circuit, however, said whether a proposed accommodation is "reasonable" is a fact-specific and contextual inquiry. Few, if any, proposed accommodations are unreasonable as a matter of law, the court said.

"Whether a maxiflex or other flexible workplace schedule is a reasonable accommodation for a given employee is a case-by-case factual inquiry, not a foreordained legal conclusion," Judge Millett wrote for the D.C. Circuit.

The Office of Personnel Management recognizes that a "maxiflex" schedule, defined as one in which a federal employee works 80 hours per two weeks but might vary the number of hours worked on a given day or the number of hours worked in a given week, may be appropriate within limits established by the employee's agency, the D.C. Circuit said.

Federal courts have ruled an employee's physical presence in the workplace during specific hours isn't necessarily an "essential element" of every job, the court said.

"The secretary [of Agriculture], moreover, need only look around the neighborhood to witness both the availability and the viability of maxiflex work schedules specifically within the federal government," the court said.

The district court "greatly overreads" Carr v. Reno , 23 F.3d 525, 3 AD Cases 434 (D.C. Cir. 1994), in saying it holds that "a regular and predictable schedule" is an essential function of all jobs, the D.C. Circuit said.

Rather, the appeals court in Carr dubbed it an "unusual" case in which one of that employee's essential functions was to upload new data into a computer at a specific time each workday, Millett wrote.

D.C. Circuit decisions issued after Carr indicate modified work schedules can be reasonable accommodations for federal employees with disabilities, the court said.

"Accordingly, the district court's holding that an 'open-ended' or maxiflex schedule is 'unreasonable as a matter of law' is incorrect," the appeals court said.

"Whether a maxiflex or other flexible workplace schedule is a reasonable accommodation for a given employee is a case-by-case factual inquiry, not a foreordained legal conclusion," Millett wrote.

Judges Karen LeCraft Henderson and Douglas H. Ginsburg joined in the decision.

Plaintiff Met Evidentiary Burden.

Solomon met her burden of producing evidence from which a reasonable jury could find a "strict work-hours regimen" wasn't an essential function of her budget analyst job, the appeals court said.

The secretary argued Solomon's job involves "tight, unpredictable and firm deadlines" unsuited to a flexible work schedule.

But Solomon answered with evidence that short deadlines were infrequent and could be met by an employee working a flexible schedule, the court said. Indeed, Solomon submitted undisputed evidence she met every work deadline while working a flexible deadline in the months preceding April 23, 2004, when the USDA formally denied her accommodation request and Solomon subsequently retired on disability, the court said.

The district court had discounted Solomon's evidence, saying it "may merely have been good luck" that she was able to meet deadlines despite her extensive absences during normal working hours in late 2003 and early 2004, when her depression symptoms had worsened.

"Summary judgment cannot rest on such speculation about evidence," the D.C. Circuit said. It admonished the district court for ignoring the axiom that on summary judgment, the court must credit the non-movant's evidence and draw all inferences in her favor.

The D.C. Circuit said it didn't need to decide if Solomon's additional accommodation requests-a privacy curtain for her cubicle, relocation of her cubicle, advance sick leave and a part-time telecommuting schedule-independently raised jury issues of reasonableness.

"Those additional requests may have been intended as alternative or temporary accommodations, or as complements to the flexible schedule," the court said. "We leave to the trier of fact whether Solomon's requests, independently or collectively, would have enabled Solomon to perform the essential functions of her job without undue hardship to the department."

Second Reversal by D.C. Circuit

The district court in 2009 had granted summary judgment to the USDA on the grounds that Solomon's receipt of federal disability retirement benefits signified she couldn't perform the budget analyst job even with accommodations and therefore she wasn't a qualified individual with a disability under the Rehabilitation Act.

But the D.C. Circuit in 2010 reversed, saying a federal employee who retires on disability after her accommodation requests are denied isn't certifying she can't perform the job's essential functions with reasonable accommodation, especially when the employer never gave her that opportunity (628 F.3d 555, 23 AD Cases 1697 (D.C. Cir. 2010) ( 244 DLR A-8, 12/21/10 ).

On remand, the district court again granted the USDA summary judgment, this time on the grounds that Solomon's proposed "maxiflex" schedule was unreasonable as a matter of law.

Karl of Karl & McDonald in Washington represented Solomon. Brian P. Hudak, R. Craig Lawrence and Ronald C. Machen Jr. of the U.S. attorney's office in Washington represented the Department of Agriculture.

To contact the reporter on this story: Kevin McGowan in Washington at

To contact the editor responsible for this story: Susan J. McGolrick at

Text of the opinion is available at .