The D.C. Circuit, in a long-pending federal sector Rehabilitation Act discrimination and retaliation case, just reversed the district court’s grant of summary judgment on the retaliation claims, finding that the district court erred in applying the standard for an adverse action under a discrimination claim to determine whether the employer’s conduct was retaliatory. Instead, the standard is whether the employer’s actions would dissuade a reasonable employee from complaining about discrimination.



However, the court affirmed the grant of summary judgment on the discrimination claim, largely because of the procedural history and because it appeared that the Secret Service had provided a reasonable accommodation.

Some excerpts follow:

http://pacer.cadc.uscourts.gov/common/opinions/201007/08-5457-1257486.pdf

Mogenhan v. Napolitano, No. 08-5457 (D.C. Cir. July 27, 2010)



Appeal from the United States District Court for the District of Columbia

(No. 1:98-cv-00817)

Morris E. Fischer argued the cause and filed the briefs for appellant.

R. Craig Lawrence, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief was Christian A. Natiello, Assistant U.S. Attorney.

Before: HENDERSON and GARLAND, Circuit Judges, and EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge GARLAND.

GARLAND, Circuit Judge:

Ann Marie Mogenhan sued her employer, the United States Secret Service, alleging that it violated the Rehabilitation Act by retaliating against her for filing a discrimination complaint and by failing to reasonably accommodate her disability. The district court granted summary judgment in favor of the Service. We reverse the grant of summary judgment on Mogenhan’s retaliation claim because the retaliatory actions she alleged might well have dissuaded a reasonable person from engaging in protected activity. We affirm the grant of summary judgment on Mogenhan’s failure-to-accommodate claim, however, because there is no genuine dispute that the Service reasonably accommodated her disability.


. . . . On March 9, 1998, Mogenhan filed suit against the Secret Service in the U.S. District Court for the District of Columbia, charging gender discrimination, disability discrimination, creation of a hostile work environment, and retaliation, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e); the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12101 et seq.; and the Rehabilitation Act of 1973, 29 U.S.C. § 791 et seq. In September 2008, the district court granted summary judgment in favor of the government on all counts. Mogenhan v. Chertoff, 577 F. Supp. 2d 210, 220 (D.D.C. 2008). On appeal, Mogenhan substantively disputes only two Rehabilitation Act claims: that the Service retaliated against her for filing discrimination complaints, and that it failed to reasonably accommodate her disability.


. . . . The district court held that, for retaliatory conduct to be actionable, it must meet the same threshold of adversity required for discriminatory conduct. Mogenhan, 577 F. Supp. 2d at 216. That is, the conduct must constitute an “adverse employment action,” id., which the court defined as an action that results in “‘materially adverse consequences affecting the terms, conditions, or privileges of employment,’” id. at 215 (quoting, inter alia, Holcomb v. Powell, 433 F.3d 889, 902 (D.C. Cir. 2006)). Under that standard, the court rejected Mogenhan’s retaliation claims. Id. at 216. This was error.

In Steele v. Schafer, we confronted this issue in the context of an action brought under Title VII of the Civil Rights Act, which contains anti-discrimination and anti-retaliation provisions that are indistinguishable from those of the ADA. 535 F.3d 689, 695 (D.C. Cir. 2008). As we explained in Steele, the Supreme Court held in Burlington Northern that, because the “‘language of the substantive [anti-discrimination] provision differs from that of the anti-retaliation provision in important ways . . . Title VII’s substantive provision and its anti-retaliation provision are not coterminous.’” Steele, 535 F.3d at 695 (quoting Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 61, 67 (2006)). The Burlington Northern Court expressly rejected the Sixth Circuit’s standard for retaliation claims -- which was the same standard that circuit had applied to discrimination claims and the same standard the district court applied to Mogenhan’s claims in this case. 548 U.S. at 60; see Steele, 535 F.3d at 695. In its place, the Court adopted the following standard: “[A] plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Burlington Northern, 548 U.S. at 68 (internal quotation marks omitted); see Steele, 535 F.3d at 696; see also Gaujacq v. EDF, Inc., 601 F.3d 565, 577 (D.C. Cir. 2010); Baloch v. Kempthorne, 550 F.3d 1191, 1198 n.4 (D.C. Cir. 2008). In Baloch v. Kempthorne, this court applied the Burlington Northern standard to retaliation claims under the Rehabilitation Act as well as Title VII. See Baloch, 550 F.3d at 1198.


Applying this standard to Mogenhan’s claims, we conclude that she proffered evidence from which a reasonable jury could find that the Secret Service retaliated against her in ways that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Burlington Northern, 548 U.S. at 68 (internal quotation marks omitted). Two of Mogenhan’s proffers -- perhaps alone but certainly in combination -- suffice to require us to reverse the district court’s grant of summary judgment.