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 mоnth later, Woodruffs 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. Woodruffs agreement did not do so, listing his telecommuting days as “variable.”
In April 1996, Carson Eoyang took over as Woodruffs manager. Friction with Eoyang and others led Woodruff tо file an EEOC complaint in February 1997. The claims asserted in that complaint are not before us in this case.
Meanwhile, Woodruffs 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 Wood-ruff was away, Eoyang took on many of Woodruffs supervisory responsibilities himself. Upon Woodruffs 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. Wоod-ruff 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 Mеmo”].
Woodruffs 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 аre 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).
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 *524 of supervisor or position.” Thus, at least formally, Woodruffs 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 аllegations 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 рroviding 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 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 providеd 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.
Woodruffs 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 thе 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 [“Woodruffs 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 we treat as the official complaint for purposes of the current case. 1
*525 On January 3, 2005, the court granted summary judgment in favor of the Secretary on all of Woodruffs claims, and Woodruff appealed. After Woodruffs counsel withdrew, this court appointed amicus curiae (“Amicus”) to represent Woodruff. Amicus filed briefs challenging the grants of summary judgment only as to Woodruffs 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 Wood-ruffs appeal, we resolve two procedural issues.
First, the Secretary argues Wood-ruffs complaint before the district court was barred by 42 U.S.C. § 2000e-16(e). That subsection — the basis for discrimination actions against federal employers— requires that district court complaints be filed “[wjithin 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,
But a plaintiffs failure to meet the § 2000e-16(e) deadline is an affirmative defense,
Harris,
Second, the Secretary contends that Amicus’s arguments regarding (1) adverse employment actions Woodruff claims to have incurred in September 1998 and (2) Woodruffs 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,
*526 With regard to the September 1998 employment actions, thе 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 Plaintiffs 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 Woodruffs claim to be a “qualified individual with a disability” is similarly ill-founded. 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 v. Gelb,
Ill
Turning to the merits, we address first Woodruffs discrimination claim. We review a district court’s grant of summary judgment
de novo. Johnson v. Executive Office for U.S. Attorneys,
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 Eoy-ang’s memo of September 3, 1998 constituted discrimination. As Woodruff contacted his Counselor regarding that memo on September 10, 1998, this portion of Woodruffs discrimination claim is not time-barred.
Woodruffs 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 demоnstrate 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 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 fаctors. § 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 Woodruffs status as a qualified individual with a disability depends on what tasks he can perform given reasonable accommodation.
See Carr v. Reno,
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 Woodruffs 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,
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 summаry judgment. The FAA Telecommuting Handbook anticipates “[ejmployees may telecommute ... as frequently as five days a week.” The FAA allowed another employee in Woodruffs division to lead a team in Washington, D.C., while working in Florida. Dolan Dep. 55-59 (Aug. 11, 1998). Such evidence, together with Woodruffs 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, there remains a genuine issue of material fact as to Woodruffs 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 Wood-ruffs supervisory authority in February 1998, and the revocation of some of Wood-ruffs 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,
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 ad
*529
verse employment actions.
See Smith v. District of Columbia,
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,
Woodruffs 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 hаd 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.
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,
In response, the Secretary proffers legitimate reasons for each adverse action. Eoyang explained his reasons for refusing *530 to reinstate Woodruffs supervisory authority as follows:
Simply put, to be an effective supervisor, you must be available to your subordinate employees on a regular, full time 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.
... [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 Woodruffs 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 Woodruffs nonstandard arrаngement.
At this stage, “the
McDonnell Douglas
framework disappears,”
Murray v. Gilmore,
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 оr 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 *531 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. Woodruffs 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. Woоdruffs assertion in his deposition that Eoyang’s estimate of his midday breaks as “one to three hours” was “highly exaggerated” is belied by Woodruffs own Summary Judgment Exhibit 18, in which he reports a break of two-and-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 Eoy-ang clearly indicated supervisors were always to be present. The fact that Wood-ruff allowed his own subordinates greater flexibility, Woodruff Dep. 128-24, in no way implies Eoyang had to do the same. Woodruffs argument that his flexible wоrk 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 Woodruffs 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 Wood-ruff 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 Eoy-ang cited, but does not present evidence from which the finder of fact could infer Eoyang agreed. This 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,
V
For the reasons outlined above, we affirm the district court’s grant of summary judgment as to Woodruffs 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.
Notes
. While the district сourt’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).
. 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.
. While 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.