UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JEANNIE MCIVER,

Plaintiff,

v. No. 16-cv-1448 (DLF)

MARK ESPER, Secretary of Defense,

Defendant.

MEMORANDUM OPINION

Plaintiff Jeannie McIver brought this lawsuit in 2016 against then-Secretary of Defense

Ashton B. Carter under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.

(Title VII), and the Rehabilitation Act of 1973,

, et seq. (Rehabilitation Act).

McIver’s amended complaint alleged mistreatment by the two components of the Department of

Defense that had employed her: the Pentagon Force Protection Agency (the Pentagon) and the

Washington Naval Yard (the Navy). Dkt. 18 (Am. Compl.). Following the Court’s partial grant

and partial denial of the Secretary’s Motion for Partial Dismissal, see Dkt. 27, four of McIver’s

claims remained. Now before the Court is Secretary of Defense Mark Esper’s Motion for

Summary Judgment pursuant to Federal Rule of Civil Procedure 56 (Rule 56). 1 Dkt. 38 (Mot.

for Summ. J.). For the reasons that follow, the Court will grant the Secretary’s motion.

1 Carter was Secretary of Defense when McIver filed her complaint, but Mark Esper has since taken that position and is automatically substituted as the defendant in this case under Rule 25(d) of the Federal Rules of Civil Procedure. I. BACKGROUND

A. McIver’s Employment with the Pentagon

McIver started working at the Pentagon when she was appointed to a police officer

position on June 29, 2014. Def.’s Statement of Undisputed Material Facts Regarding the

Pentagon (Def.’s Pentagon SUMF) ¶ 11. 2 All new police recruits at the Pentagon must complete

extensive training requirements—including the twelve-week Uniformed Police Training Program

at the Federal Law Enforcement Training Center (FLETC) in Glynco, Georgia—in order to gain

the necessary skills, knowledge, and competencies to safely and effectively perform their duties

as Pentagon police officers.

. While McIver had previously completed a different basic

training program at FLETC in 2000, she had never attended the Uniformed Police Training

Program that was a requirement in 2014 for all new Pentagon police recruits.

. Internal

protocol makes clear that completion of all basic training is a condition of continued employment

as a Pentagon police officer. See Dkt. 39, Ex. 9 at 1 (“Personnel who do not successfully

complete the basic training requirement shall be processed for removal from this position.”).

At the time she began working at the Pentagon, McIver was the primary caregiver for her

mother, who required assistance with her continuous dialysis treatment for kidney failure. Am.

Compl. ¶ 19. On July 7, 2014, McIver informed her direct supervisor, Eric McVicker, Chief of

the Pentagon Law Enforcement Training Division, that her caregiving responsibilities to her

mother would not allow her to attend the required training at FLETC set to begin the following

Monday in Glynco, Georgia. Def.’s Pentagon SUMF ¶ 17. On July 11, McVicker responded to

McIver’s request, instructing her to report to FLETC for the training as planned.

.

2 Unless otherwise noted, the facts cited in this opinion are drawn from those portions of the defendant’s Statement of Undisputed Material Facts that the plaintiff has not disputed.

2 On July 9, 2014, in an email to McVicker, McIver invoked her rights under the Family

and Medical Leave Act (FMLA).

; see also Dkt. 39, Ex. 24 at 1 (“At this time I elect to

invoke my FMLA rights in order to complete training and requirements at some later time and or

altered schedule.”). McVicker responded to McIver’s email to inform her that she needed to

submit the required FMLA paperwork, including a physician’s signature, before her request

could be granted. Def.’s Pentagon SUMF ¶¶ 21–22. On July 10, McIver submitted updated

paperwork in support of her FMLA request.

. McIver’s updated FMLA request sought

“[l]eave . . . on an as needed basis” as well as an “alternate work schedule in order to provide the

maximum amount of care for my family member.” Dkt. 39, Ex. 27 (July FMLA Request) at 3.

Specifically, McIver sought to work an evening shift from 2 p.m. to 10 p.m., with Tuesdays and

Wednesdays off, or “something similar.”

On July 20, 2014, McIver had emergency surgery to repair a ruptured ulcer. Def.’s

Pentagon SUMF ¶ 30. On July 22, McIver called McVicker to advise him that she had been

admitted to the hospital and received emergency surgery.

. McVicker forwarded this

information to the Pentagon’s Recruitment Medical Fitness Division (the Medical Division).

On July 30, the Medical Division received a note from McIver’s treating physician, advising that

McIver had recently undergone surgery and would be in post-operative recovery for

approximately three to four weeks.

. Upon review of that documentation, the Medical

Division placed McIver in a “Medical Hold Pending” status pending notice of her full recovery

from surgery.

. On July 31, the Medical Division also informed McIver that the

Pentagon’s Medical Review Officer had “preliminarily determined that [McIver might] not meet

one or more of [the Pentagon’s] medical standards” due to her recent surgery, and that McIver

would have the opportunity to submit “supplemental medical information” on or before August

3 11 in support of her medical clearance.

; see Dkt. 39, Ex. 30 (Medical Division Request)

at 116. Specifically, the Medical Division encouraged McIver to provide “all hospital records,”

including surgical operative reports, discharge narratives, and doctors’ notes. Def.’s Pentagon

SUMF ¶ 34; see Medical Division Request at 116.

On August 7, 2014, while still recovering from her ulcer surgery, McIver resubmitted her

FMLA request in an email to her second-level supervisor, Dennis Smith. Def.’s Pentagon ¶ 26.

McIver’s email to Smith specified, “I am not requesting leave at this time, but a suitable shift

. . . .” Id.; see Dkt. 39, Ex. 33 (August FMLA Request) at 2. Attached to McIver’s email was

her completed FMLA request paperwork, which stated, “Requesting suitable shift as per original

[request]; 2-10pm, Tues. & Wed. off, in accordance with FMLA guidelines.” Def.’s Pentagon

SUMF ¶ 26; see August FMLA Request at 1. The form noted the “purpose” of McIver’s request

as the “[c]are of [a] family member” and specifically invoked the FMLA on the basis of the

“[s]erious health condition of spouse, son, daughter, or parent.” Def.’s Pentagon SUMF ¶ 26;

see August FMLA Request at 1. Nevertheless, McIver testified that she believed that the

resubmission of her FMLA request also constituted a request for a reasonable accommodation

for her recently ruptured ulcer. Plaintiff’s Statement of Disputed Facts Regarding the Pentagon

(Pl.’s Pentagon SDF) ¶¶ 28, 31; see Dkt. 44, Ex. 4 (McIver Dep.) at 106:1–16.

On August 15, 2014, McIver emailed McVicker a “return to work” note from physician

Bobby David, dated August 13, that stated that McIver “can go back to work as light duty no

pushing, pulling, or lifting anything heavy for the next two weeks.” Def.’s Pentagon SUMF

¶¶ 35–36. McIver did not provide this note to the Medical Division, nor did she provide any of

the hospital records that the Medical Division had requested. Def.’s Pentagon SUMF ¶ 35. On

August 22, McIver provided her Pentagon supervisors with a second doctor’s note, from

4 physician Erika Herrera, stating that McIver “underwent surgery on July 20, 2014” and “may

return to work on 8/25/2014 light duty until further notice.” Pl.’s Pentagon SDF ¶ 35. On

August 26, however, due her failure to provide what the Medical Division considered adequate

documentation regarding her medical status, McIver was officially placed on “Medically Not

Cleared” status and her medical clearance case was referred to the Pentagon’s Medical Review

Board for further review. Def.’s Pentagon SUMF ¶ 37.

On that same day, Dennis Smith responded to McIver’s August 7 FMLA request. Dkt.

39, Ex. 35 at 1. Smith denied McIver’s request for an alternative shift.

(“Unfortunately, I do

not have an assignment available for you for the work schedule that you requested.”). Smith’s

email informed McIver that the FMLA “guarantees employees the opportunity to take up to 12

weeks of unpaid leave . . . for purposes of caring for a family member,” but that it “does not

require [the Pentagon] to assign you to a specific shift.”

In the same email, Smith also

retroactively granted McIver’s requests for leave under the FMLA, effective July 15, 2014.

McIver subsequently provided documentation requesting FMLA leave for the period beginning

July 15, 2014, and continuing through October 31, 2014, and those requests were also approved.

Def.’s Pentagon SUMF ¶¶ 41–42.

McIver’s physician cleared her to return to full duty with no restrictions on October 23,

2014, and again on December 18, 2014.

. Upon receiving the December doctor’s note,

the Pentagon assigned McIver to perform office administrative work for several weeks while she

waited to attend the March 2015 FLETC training and the associated pre-training.

. But

McIver subsequently requested, and the Pentagon approved, additional requests for leave

extending through January 30, 2015.

.

5 On January 27, 2015, the Medical Division notified McIver that it had updated her status

to “Medically Cleared” and that she was eligible to return to full duty.

. On January 28,

Smith contacted McIver to inform her of the Pentagon’s expectation that she would attend the

next training course at FLETC in Glynco, Georgia, beginning in March 2015.

. When

McIver reported for duty on February 2, 2015, Smith reiterated that she would be expected to

report to FLETC for the training course beginning on March 9 and continuing through May 29,

2015.

.

The following week, however, McIver contacted the Pentagon’s Deputy Director of

Training to inform him that she would be unable to attend the FLETC training in March 2015

due to her caregiving responsibilities to her mother.

. On March 4, McIver contacted

McVicker to ask where she should report for work on March 9 if she did not report to the

FLETC training.

. Smith responded to McIver’s inquiry, reiterating the Pentagon’s

expectation that she report to FLETC in Glynco, Georgia to attend the training; Smith notified

McIver that there was no alternate reporting location and that her failure to report to FLETC on

March 9 would result in her being placed in absent without leave (“AWOL”) status.

On

March 8, McIver emailed Smith and reiterated that she would not be able to report to FLETC the

following day.

. When McIver subsequently failed to report to FLETC, the Pentagon

placed her in an AWOL status.

.

On March 25, 2015, in response to McIver’s failure to attend the mandatory FLETC

training course, Smith issued McIver a memorandum entitled “Unreasonable Use of Approved

Leave & Availability to Satisfy a Condition of Continued Employment.”

; see Dkt. 39,

Ex. 64 (Smith Memorandum) at 1. The memorandum began by stating that successful

completion of the FLETC training was a requirement of continued employment as a Pentagon

6 police officer and that McIver had previously acknowledged this fact in writing. Smith

Memorandum at 1. The memorandum then stated that McIver’s failure to attend the required

FLETC training in March had caused her to “continue to be ineligible to perform the full range

of police officer duties.”

. It emphasized that her unavailability for full duty was

“directly related to [her] failure to attend FLETC.”

. And it informed McIver that “[the

Pentagon Force Protection Agency] does not have any permanent light duty positions” and that

“the light duty assignments that [the Pentagon Force Protection Agency] does have are available

only to those officers who are temporarily unable (for personal medical reasons) to perform the

full range of their essential duties.”

(emphasis in original). Finally, the memorandum asked

McIver to provide written notice that she would attend the next FLETC training in July 2015 or

to “propose an alternate course of action.”

In a letter dated April 8, 2015, McIver responded to Smith’s March 25 memorandum.

Def.’s Pentagon SUMF ¶ 64. McIver’s letter made no mention of whether she ever intended to

participate in the required FLETC training. Instead, it stated, “[a]s an alternate course of action,

I request to be placed in an alternate position until I find other employment.”

The Pentagon

responded in two letters dated May 8, 2015.

. The Pentagon’s first letter denied

McIver’s request for reassignment and informed her that she was not “qualified to perform the

full range of essential duties as a [Pentagon] Police Officer (due to [her] failure to successful[ly]

complete FLETC training).”

The letter also directed her again to indicate whether she

intended to attend the next FLETC training in July 2015.

The second letter placed McIver on notice of leave restriction due to her excessive

absences and her AWOL status between March 9, 2015 and March 21, 2015, following her

refusal to attend the FLETC training.

. The letter provided McIver with detailed

7 instructions regarding requirements for her to properly request leave, including the requirement

that she request leave in advance absent an emergency.

And it cautioned her that failure to

comply with these instructions would result in her being placed in an AWOL status.

On June 26, 2015, McIver submitted a request for retroactive sick leave to cover the time

period from June 15, 2015 through the date of the request.

. Smith denied McIver’s

request and placed McIver in an AWOL status, in accordance with the May 8 letter imposing

leave restrictions on McIver.

. Soon thereafter, McIver accepted a new position with the

Washington Naval Yard, separating from the Pentagon and transferring into her new

employment effective June 28, 2015.

.

B. Olejnik’s Employment with the Pentagon

Robert Olejnik is a Caucasian male who was part of the same Pentagon recruitment class

as McIver; Olejnik was appointed to the Pentagon police officer position effective June 29, 2014.

Pl.’s Pentagon SDF ¶ 71. The circumstances of Olejnik’s employment with the Pentagon are

relevant to McIver’s claims regarding the Pentagon because McIver alleges that Olejnik was

similarly situated to her and yet treated more favorably. Am. Compl. ¶¶ 38–41.

On July 1, 2014, Olejnik contacted the Pentagon to inform them that he was “still

healing” from a recent orthoscopic hip surgery and felt “hesitant” about his ability to fully

participate in all upcoming events. Pl.’s Pentagon SDF ¶ 72; see Dkt. 39, Ex. 80 at 3. The

Pentagon’s Medical Review Officer conducted a physical examination of Olejnik and based on

Olejnik’s functional limitations, determined that Olejnik was “Medically Not Cleared,” which

meant that he was ineligible to report to FLETC for the eight weeks of mandatory training

scheduled to commence on July 13, 2014. Def.’s Pentagon SUMF ¶ 73. On July 9, Olejnik

promptly and thoroughly responded to the Pentagon’s request for additional medical

8 documentation regarding his injuries.

. In light of the documented medical restrictions

on his activities, the Pentagon offered Olejnik a temporary assignment to light-duty work with

the following schedule: Mondays through Fridays between the hours of 6 a.m. and 2:30 p.m.

¶¶ 75–76. Olejnik accepted the assignment and continued in that light duty status until

September 9, 2014.

Based on Olejnik’s submission of updated medical documentation, the Pentagon

upgraded Olejnik to “Medically Cleared” status on September 9.

. After being medically

cleared, Olejnik no longer required a light-duty assignment.

But he was still unable to fulfill

the essential duties of a Pentagon police officer because he had not yet attended the required

FLETC training. Accordingly, on September 19, 2014, the Pentagon issued Olejnik a Notice of

Proposed Removal for Failure to Meet Conditions of Employment.

. The Pentagon

proposed Olejnik’s removal because he had failed to timely meet a condition of his continued

employment, namely, successful completion of the FLETC training course.

In response to the Notice of Proposed Removal, Olejnik submitted a written reply in

which he unambiguously expressed his willingness and ability to attend the next iteration of the

FLETC training.

. On January 5, 2015, in response to Olejnik’s representations, the

Pentagon rescinded Olejnik’s Notice of Proposed Removal.

. Olejnik subsequently

attended the required training at the FLETC in Glynco, Georgia in March 2015, successfully

completing the course in May 2015.

. Olejnik’s completion of the required FLETC

training allowed him to begin working as a full-time Pentagon police officer.

C. McIver’s Employment with the Navy

In June 2015, McIver accepted a new position with the Department of Defense as a police

officer at the Washington Naval Yard. Compl. ¶ 44; Def.’s Statement of Undisputed Material

9 Facts Regarding the Navy (“Def.’s Navy SUMF”) ¶ 1. The essential functions of this position

included patrolling and securing assigned areas at a top-secret Navy facility, performing access

control duties at that facility, and responding to emergency calls.

. Those functions, in

turn, require Navy police officers to wear certain protective equipment along with their firearms.

That equipment typically includes a Level III retention holster, which contains extra

retention functions that help prevent potential assailants from extracting the firearm from the

police officer’s holster.

.

Around September 2015, McIver began experiencing medical complications related to

her July 2014 ulcer surgery that she attributed to the protective equipment she was required to

wear at work.

. Specifically, McIver began experiencing “pain, nausea, dizziness, drop

in blood count, [and] gastrointestinal bleeding.”

¶ 14 (quoting McIver Dep. at 36:12–13). On

September 21, 2015, McIver provided the Navy with a note from her personal physician,

Towana Spriggs, which stated that McIver had reported “abdominal restriction and pain over

[her] surgical scar” since she began wearing the protective equipment, and that McIver’s

“exclusion from wearing the ‘protective gear and belt’ would help to alleviate” those symptoms.

. On September 29, 2015, McIver also consulted with Paresh Lakhani, a Navy physician.

. Lakhani recommended that McIver return to her permanent position, but with

accommodations, stating that “Officer McIver can work full duty without restrictions but I

recommend allowing the accommodation of wearing a high ride holster.”

.

Following these medical consultations, McIver requested, and the Navy entertained,

several different accommodations for her symptoms.

. The Navy initially allowed

10 McIver to wear a Level II retention holster on a temporary basis.

. 3 This was only a

short-term solution, however, because the Navy deemed it unsafe for its police officers to stand

guard without the full complement of required protective equipment, including a Level III holster

and ballistic vest, and Navy regulations required this protective equipment.

.

Next, McIver requested to wear a high-ride holster.

. After researching the

available holsters, however, the Navy ultimately denied this request.

. As the Navy’s

police chief explained, the high-ride holster that McIver had proposed to wear was a Level I

retention holster, which the Navy deemed impermissibly dangerous for officers on patrol.

. The Navy concluded that it lacked a suitable Level III high-ride holster in its inventory that

would allow McIver to perform the duties of her role.

¶¶ 24–25. In response to a subsequent

request from McIver, the Navy also researched the possibility of an adaptor that would maintain

the retention capabilities of a Level III holster but make it fit more comfortably around McIver’s

waist.

. But the relevant approval body for the Navy could not authorize use of the

adaptor because it had not been field-tested and approved and therefore presented a safety issue

for McIver and her co-workers working at controlled points of entry to Navy facilities.

.

Following the Navy’s consideration of these proposals, McIver also requested to wear a

padded belt in order to alleviate her symptoms.

; McIver Dep. at 185:16–186:9. The

Navy ultimately approved this request and permitted McIver to wear the padded belt because it

concluded that the padded belt did not create a safety risk.

; see also McIver Dep. at

185:16–24.

3 Level II holsters contain at least one active retention device in addition to the passive retention holster itself, but lack the full suite of retention protections that characterize Level III holsters.

¶¶ 4–5.

11 D. Procedural History

McIver filed her initial complaint against the Secretary on July 14, 2016. Dkt. 1

(Compl.). On February 9, 2017, McIver amended her complaint. Am Compl. Her amended

complaint alleged five claims regarding her employment at the Pentagon: (1) failure to

accommodate in violation of the Rehabilitation Act,

¶¶ 55–57; (2) retaliation in violation of

the Rehabilitation Act,

¶¶ 58–60; (3) discrimination on the basis of race in violation of Title

VII,

¶¶ 61–63; (3) discrimination on the basis of sex in violation of Title VII,

¶¶ 64–66;

and (5) disparate treatment or intentional discrimination on the basis of disability in violation of

the Rehabilitation Act,

¶¶ 67–69. Her amended complaint also alleged a single claim

regarding her employment at the Navy Yard: that the Navy had failed to accommodate her

disability in violation of the Rehabilitation Act.

¶¶ 70–72.

On March 21, 2017, the Secretary filed a motion for partial dismissal. Dkt. 20 (Mot. to

Dismiss). The Secretary sought dismissal of McIver’s three Rehabilitation Act claims regarding

her employment at the Pentagon, arguing that these claims should be dismissed for failure to

state a claim upon which relief could be granted and because McIver had failed to exhaust her

administrative remedies for the alleged violations. Mot. to Dismiss at 2. The Secretary also

sought to limit the scope of McIver’s failure-to-accommodate claim against the Navy on the

ground that McIver had failed to exhaust administrative remedies for some portion of the

allegations in the amended complaint that corresponded to this claim.

The Secretary did not

seek dismissal of McIver’s Title VII claims.

The matter was referred to the undersigned judge on December 5, 2017, and on July 24,

2018, the Court granted in part and denied in part the Secretary’s motion for partial dismissal.

Dkt. 27 (Order on Mot. to Dismiss). The Court granted the motion to dismiss with respect to

12 McIver’s first and fifth claims regarding the Pentagon,

concluding that McIver had failed to

exhaust her administrative remedies with respect to those two claims, see Mem. Op. at 7. The

Court denied the motion to dismiss with respect to McIver’s retaliation claim regarding the

Pentagon, allowing that claim to proceed insofar as it alleged that: (1) McIver’s August 2014 and

April 2015 requests for accommodation constituted protected activities under the Rehabilitation

Act; and that (2) the Pentagon retaliated against McIver for these protected activities when it

denied her requests in May and June 2015. Order on Mot. to Dismiss; see Mem. Op. at 9–10.

Finally, the Court granted the Secretary’s motion with respect to the failure-to-accommodate

claim regarding the Navy, limiting that claim to allegations of events occurring no more than 45

days before November 10, 2015, the date on which McIver filed her formal administrative

complaint against the Navy. Order on Mot. to Dismiss, see Mem. Op. at 10.

On February 7, 2020, the Secretary filed the instant motion for summary judgment.

II. LEGAL STANDARD

Under Rule 56, summary judgment is appropriate if the moving party “shows that there is

no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby Inc.,

, 247–48

(1986). A “material” fact is one that could affect the outcome of the lawsuit. See Liberty Lobby,

; Holcomb v. Powell,

(D.C. Cir. 2006). A dispute is “genuine”

if a reasonable jury could determine that the evidence warrants a verdict for the nonmoving

party. See Liberty Lobby,

; Holcomb,

. In reviewing the record,

the court “must draw all reasonable inferences in favor of the nonmoving party, and it may not

make credibility determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods.,

(2000).

13 It is well established, however, that “a plaintiff opposing summary judgment” must

“substantiate [her allegations] with evidence” that “a reasonable jury could credit in support of

each essential element of her claims.” Grimes v. District of Columbia,

(D.C.

Cir. 2015). The moving party is entitled to summary judgment if the nonmoving party “fails to

make a showing sufficient to establish the existence of an element essential to that party’s case,

and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett,

(1986).

III. ANALYSIS

The Secretary seeks summary judgment on McIver’s four remaining claims: (1) a Title

VII race discrimination claim regarding the Pentagon; (2) a Title VII sex discrimination claim

regarding the Pentagon; (3) a Rehabilitation Act retaliation claim regarding the Pentagon; and (4)

a Rehabilitation Act failure-to-accommodate claim regarding the Navy. The Court will consider

these claims in turn, grouping the two Title VII claims together given their similar substance.

A. Title VII Claims

First, McIver claims that the Pentagon discriminated against her on the basis of race and

sex in violation of Title VII. Am. Compl. ¶¶ 61–66. Title VII bars employers from

“discriminat[ing] against any individual with respect to his compensation, terms, conditions, or

privileges of employment, because of such individual’s race . . . [or] sex.” 42 U.S.C. § 2000e-

2(a)(1).

Where a plaintiff offers only circumstantial evidence of discrimination, courts evaluate

claims under Title VII using the burden-shifting framework set forth in McDonnell Douglas

Corp. v. Green,

(1972); see Gaujacq v. EDF, Inc.,

(D.C. Cir.

2010). Under that framework, the employee “must first make out a prima facie case” of

14 discrimination. Iyoha v. Architect of the Capitol,

(D.C. Cir. 2019). The

burden then shifts to the employer to “come forward with a legitimate reason for the challenged

action.”

If the employer satisfies that burden, the court “must conduct one central inquiry in

deciding an employer’s motion for summary judgment: whether the plaintiff produced sufficient

evidence for a reasonable jury to find that the employer’s asserted non-discriminatory reason was

not the actual reason [for its action] and that the employer intentionally discriminated against the

plaintiff on a prohibited basis.”

(internal quotation marks omitted). The D.C. Circuit has

emphasized that “the issue is 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

Corr.,

(D.C. Cir. 1996) (alterations and internal quotation marks omitted).

If the employer carries its burden to provide evidence of a legitimate, non-discriminatory

reason for the challenged action, the district court “need not—and should not—decide whether

the plaintiff actually made out a prima facie case.” Brady v. Office of Sergeant at Arms,

(D.C. Cir. 2008). Instead, the court’s analysis should focus on whether the

plaintiff can meet his or her burden to show that the employer’s explanation is merely a pretext

for discrimination. See

Here, McIver’s Title VII claims against the Pentagon focus principally on the Pentagon’s

decision to deny two of her requests for accommodation: (1) her August 2014 request for light

duty following her ulcer surgery the previous month, see Am. Compl. ¶ ¶ 32–33; and (2) her

April 2015 request for an alternate position following her absence at the March 2015 FLETC

training, see Am. Compl. ¶ 37. Because the Pentagon has asserted non-discriminatory

justifications for its responses to both of McIver’s requests, the Court will not consider whether

McIver has made out a prima facie case of employment discrimination, but will instead assess

15 the Pentagon’s asserted justifications for its treatment of McIver and McIver’s evidence that

those justifications were pretextual.

1. Legitimacy of the Pentagon’s Justifications

Step two of the McDonnell Douglas analysis requires an employer to “come forward with

a legitimate reason for the challenged action.” Iyoha,

. The D.C. Circuit has

recently emphasized four factors that should be “paramount in the analysis” of whether an

employer has met this burden. Figueroa v. Pompeo,

(D.C. Cir. 2019).

Namely, at step two: (1) the employer must produce evidence that would be admissible at trial

for a finder of fact; (2) “the factfinder, if it ‘believed’ the evidence, must reasonably be able to

find that ‘the employer’s action was motivated by’ a nondiscriminatory reason”; (3) the

employer’s justification must be “facially ‘credible’ in light of the proffered evidence”; and (4)

the employer must provide a “clear and reasonably specific explanation” for its action that is

“articulated with some specificity.”

at 1087–88 (citations omitted). The Pentagon’s

explanations of its responses to both of McIver’s accommodation requests satisfy this burden.

(a) McIver’s August 2014 Request

McIver claims that her August 2014 request for light duty work was “ignored” and that

she was “never accommodated, but instead forced to use excessive amounts of leave from July

2014 to January 2015 in order to remain employed with [the Pentagon].” Am. Compl. ¶¶ 32, 33.

To begin with, the record contains no evidence that McIver ever formally requested light duty as

an accommodation. During her recovery from ulcer surgery, McIver submitted two doctor’s

notes stating that she was able to return to work in a light-duty capacity. But nothing in the

record states that McIver ever formally requested a light-duty work accommodation. See, e.g.,

Def.’s Pentagon SUMF ¶ 62; Smith Memorandum at 3 (encouraging McIver on March 25, 2015

16 to “contact Mr. Ken Rauch” if she would like to “request a reasonable accommodation”).

McIver did submit formal requests under the FMLA, seeking reassignment to an evening shift

that would allow her to care for her mother during the day, and McIver’s deposition testimony

suggests that she may have believed these FMLA requests also constituted a request for

accommodation for her own medical difficulties. See McIver Dep. at 106:1-16; see also Pl.’s

Pentagon SDF ¶¶ 28, 31. But the Pentagon’s failure to respond to her August 2014 “request” for

light duty is not surprising given that McIver never specifically requested a light-duty

assignment through the Pentagon’s established procedures, and her documented FMLA requests

sought different accommodations.

But even crediting McIver with having formally requested light duty, the Pentagon has

provided legitimate, non-discriminatory reasons for declining to grant it. First, the Pentagon

states that McIver’s request “was not simply and exclusively a request to work light duty”

because McIver “was also requesting to work an ‘alternate shift’ outside of normal business

hours.” Mot. for Summ. J. at 12. The record supports the Pentagon’s explanation. Prior to her

surgery, McIver had requested to work from 2 p.m. to 10 p.m., with Tuesdays and Wednesdays

off. See July FMLA Request at 3. More importantly, she formally resubmitted her FMLA

request to her supervisors during her recovery from surgery, and less than a week before her first

doctor’s note communicated her ability to return to work in a light-duty capacity. Def.’s

Pentagon SUMF ¶ 26; see August FMLA Request at 1. As a result, the Pentagon reasonably

considered McIver’s alternate-shift and light-duty requests in tandem and concluded that it could

not accommodate her light-duty request given the unavailability of light-duty work outside of

normal business hours. See Dkt. 39, Ex. 11 (Smith Dep.) at 64:4–21. To the extent that McIver

was willing to forego her FMLA request and work a light-duty shift within normal hours, she did

17 not communicate that willingness to her supervisors. In assessing the legitimacy of an

employer’s reasons for denying an employee’s accommodation requests, “the issue is not the

correctness or desirability of the reasons offered but whether the employer honestly believes in

the reasons it offers.” Fischbach,

. Here, the Pentagon reasonably interpreted

McIver’s stated availability for light-duty work in conjunction with her repeated FMLA requests

for an evening shift. The Pentagon’s failure to deduce McIver’s willingness to perform light

duty work within normal business hours, and accommodate her accordingly, is not evidence of

unlawful discrimination.

Second, the Pentagon states that McIver’s “failure to timely submit the required medical

documentation as she was instructed” was another basis for its August 2014 decision not to allow

McIver to work light duty. Mot. for Summ. J. at 13. The record supports this explanation too.

McIver was placed in a “Medical Hold Pending” status while she recovered from her surgery.

Def.’s Pentagon SUMF ¶ 33. On July 31, the Medical Division specifically informed her that

she would need to obtain medical clearance to return to work; to obtain such clearance, the

Medical Division encouraged her to submit “supplemental medical information” including

“hospital records” such as surgical operative reports, discharge narratives, and doctors’ notes.

Id. ¶ 34; see Medical Division Request at 116. But McIver provided the Medical Division with

none of this information, not even a copy of the cursory doctor’s note that she provided to

McVicker. Thus, on August 26, McIver was officially placed on “Medically Not Cleared”

status, rendering her ineligible for any work, even light duty. Def.’s Pentagon SUMF ¶ 37.

Pentagon police officers are required to meet certain medical standards, id. ¶ 6, and the Pentagon

reasonably requires documentation from employees returning from medical leave to ensure that

they meet those requirements. McIver’s failure to timely submit the required documentation

18 concerning her medical status was a legitimate basis for the Pentagon to decline to afford her the

work placement she sought.

(b) McIver’s April 2015 Request

McIver alleges that in April 2015, she “again requested for reasonable accommodation,”

but that “Smith denied [her] request to be placed in an alternate position until she could find

other employment, for permanent light duty status [sic] and indicated that she would be

ineligible for full duty status until she reported to FLETC.” Am. Compl. ¶ 37. Consistent with

this allegation, the record reflects that on April 8, 2015, McIver wrote to the Pentagon, “[a]s an

alternate course of action, I request to be placed in an alternate position until I find other

employment.” Id. ¶ 64. And on May 8, the Pentagon denied McIver’s request, informing her

that she was not “qualified to perform the full range of essential duties as a [Pentagon] Police

Officer (due to [her] failure to successful[ly] complete FLETC training).” Id. ¶ 66.

The Pentagon provided legitimate justifications for its denial of McIver’s request. To the

extent that McIver requested a permanent light duty role, 4 Smith had previously informed

McIver, in his March 25 memorandum to her, that “[the Pentagon Force Protection Agency] does

not have any permanent light duty positions” and that “the light duty assignments that [the

Pentagon Force Protection Agency] does have are available only to those officers who are

temporarily unable (for personal medical reasons) to perform the full range of their essential

duties.” Def.’s Pentagon SUMF ¶ 60; Smith Memorandum at 3 (emphasis in original). It would

have been unreasonable for McIver, who had been hired by the Pentagon as a full-duty police

4 Notwithstanding the allegations of the complaint, which describe McIver’s April 2015 request as seeking “permanent light duty status,” Am. Compl. ¶ 37, McIver testified in her deposition that a request for permanent light-duty status was “not reasonable” and denied having made one. See McIver Dep. at 157:2–3 (“No, it’s not reasonable and I didn’t ask for that.”).

19 officer, to expect to remain employed in a permanent light-duty capacity. The Pentagon,

meanwhile, reasonably adhered to its generally applicable and non-discriminatory policy that

permanent light-duty positions were unavailable.

The Pentagon also provided a legitimate justification for its denial of McIver’s request

“to be placed in an alternate position until [she could] find other employment.” Def.’s Pentagon

SUMF ¶ 64. In the same March 25 memorandum to McIver—which followed her second failure

to attend the FLETC training—Smith reiterated that successful completion of the FLETC

training was a requirement of continued employment as a Pentagon police officer. Smith

Memorandum at 1. Smith explained that McIver’s failure to attend the required FLETC training

in March had caused her to “continue to be ineligible to perform the full range of police officer

duties.” Def.’s Pentagon SUMF ¶ 59; Smith Memorandum at 2. And subsequently, in denying

McIver’s April 2015 request, the Pentagon reiterated that McIver was not “qualified to perform

the full range of essential duties as a Pentagon Police Officer (due to [her] failure to

successful[ly] complete FLETC training).” Def.’s Pentagon SUMF ¶ 66.

That fact alone fully justified the Pentagon’s failure to grant McIver the alternate role that

she sought. The Pentagon had hired McIver as a police officer. Id. ¶ 11. The core duties of a

Pentagon police officer, which include “force protection, security, and law enforcement,” id. ¶ 1,

required that all new Pentagon police officer recruits successfully complete all assigned training,

including the twelve-week FLETC training course that took place in July 2014 and again in

March 2015, id. ¶ 8. McIver failed to attend the FLETC training on both occasions, despite

ample notice of her obligation to do so. See, e.g., id. ¶¶ 48, 49. After McIver failed to complete

the basic requirements of the job for which she had been hired, the Pentagon was justified in

declining to obtain an “alternate position” for her.

20 2. McIver’s Evidence of Pretext

At step three of the McDonnell Douglas framework, a plaintiff must “produce[] sufficient

evidence for a reasonable jury to find that the employer’s asserted non-discriminatory reason was

not the actual reason [for its action] and that the employer intentionally discriminated against the

plaintiff on a prohibited basis.” Iyoha,

. One way for a plaintiff to establish

pretext is to present “evidence suggesting that the employer treated other employees of a

different race [or sex] . . . more favorably in the same factual circumstances.” Burley v. Nat’l

Passenger Rail Corp.,

(D.C. Cir. 2015) (internal quotation marks omitted).

In challenging the Pentagon’s stated justifications for its actions, McIver relies

principally on the Pentagon’s treatment of Robert Olejnik, a Caucasian male member of

McIver’s Pentagon recruitment class who was permitted to work in a light-duty capacity while

he recovered from hip surgery. See Am. Compl. ¶¶ 38–41; Dkt. 42 (Opp’n to Mot. for Summ. J.)

at 8 (“Throughout this litigation, [McIver] has alleged that she was treated less favorably than a

similarly situated recruit Robert Olejnik.”). McIver contends that Olejnik was similarly situated

to her because he also failed to attend the July 2014 FLETC training and he also experienced

medical complications during his employment with the Pentagon.

But Olejnik was not similarly situated to McIver in material ways. Three differences

between Olejnik’s and McIver’s employment circumstances stand out. First, Olejnik’s

unquestioned availability to work normal daytime hours allowed the Pentagon to assign him to

temporary light duty on Mondays through Fridays between the hours of 6 a.m. and 2:30 p.m.

Def.’s Pentagon SUMF ¶ 76. McIver, meanwhile, informed the Pentagon of her ability to return

to work in a light-duty capacity only while simultaneously pressing repeated, formal FMLA

requests for assignment to an evening and weekend shift, during hours in which light-duty work

21 was unavailable. See July FMLA Request at 3; August FMLA Request at 1; Smith Dep. at 64:4–

21. Second, Olejnik promptly and thoroughly responded to the Pentagon’s request for additional

medical documentation regarding his injuries. Def.’s Pentagon SUMF ¶ 74. McIver’s

corresponding failure to provide the documentation requested by Medical Division made it

difficult for the Pentagon to medically clear her for a return to work in any capacity. Finally,

Olejnik actually attended the required FLETC training in March 2015, successfully completing

the course in May 2015. Id. ¶ 81. In contrast, McIver failed to attend the March training, which

rendered her unable to perform the duties of a Pentagon police officer despite having spent

almost a year on the job. See, e.g., id. ¶ 66. In other words, none of the Pentagon’s justifications

for denying McIver’s various requests applied to Olejnik, who (1) was not pressing simultaneous

FMLA requests to work non-standard hours; (2) promptly and thoroughly provided all medical

documentation that the Pentagon requested; and (3) attended the March 2015 FLETC training

that was a condition for his continued employment as a Pentagon police officer.

Moreover, to the extent that McIver’s and Olejnik’s situations were comparable in certain

respects, the record reflects that the Pentagon treated Olejnik more harshly than McIver in other

ways. First, once Olejnik fully recovered from his hip surgery, the Pentagon formally proposed

his termination by issuing him a Notice of Proposed Removal for Failure to Meet Conditions of

Employment due to his failure to attend the FLETC training course the previous summer. Def.’s

Pentagon SUMF ¶ 78. The Pentagon never issued McIver a Notice of Proposed Removal

notwithstanding her failure to complete the same required training. Second, the Pentagon

rescinded Olejnik’s Notice of Proposed Removal only after he unambiguously expressed his

willingness and ability to attend the next iteration of the FLETC training, id. ¶ 79, and only then

did the Pentagon afford Olejnik a limited conditional duty assignment in anticipation of his

22 attendance at the training. But when McIver returned to work in February 2015, the Pentagon

immediately afforded her a similar conditional duty assignment even though she never confirmed

her willingness to attend the mandatory FLETC training. Id. ¶ 45.

In short, the Pentagon’s treatment of Olejnik does not give rise to an inference that its

stated justifications for its treatment of McIver were pretextual. As explained, Olejnik was not

similarly situated to McIver, nor was he treated more favorably than McIver in relevant respects.

And nothing else in the record suggests that the Pentagon’s denials of McIver’s requests were

motivated by her race or sex. Because McIver has not “produced sufficient evidence for a

reasonable jury to find that the employer’s asserted non-discriminatory reason was not the actual

reason [for its action] and that the employer intentionally discriminated against the plaintiff on a

prohibited basis,” Iyoha,

, the Court will grant the Secretary’s motion for

summary judgment with respect to McIver’s Title VII claims.

B. Retaliation Claim

Second, McIver claims that the Pentagon retaliated against her for engaging in protected

activity under the Rehabilitation Act. See Am. Compl. ¶¶ 58–60. The Rehabilitation Act makes

it unlawful to “coerce, intimidate, threaten, or interfere with any individual in the exercise or

enjoyment of, or an account of his or her having exercised or enjoyed . . . any right granted or

protected by this chapter.”

(b). An employee claiming a violation of this

provision must establish 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.’” Solomon v. Vilsack,

(D.C. Cir. 2014) (alterations in original) (quoting

Jones v. Bernanke,

(D.C. Cir. 2009)). Where, as here, a plaintiff offers only

23 circumstantial evidence of retaliation, her claim is governed by the same McDonnell Douglas

burden-shifting framework described above.

In its memorandum opinion granting in part the Secretary’s motion to dismiss, the Court

narrowed the scope of McIver’s retaliation claim. The Court held that McIver’s retaliation claim

could survive the Secretary’s motion to dismiss only insofar as it alleged that (1) the Pentagon

had retaliated against McIver for her August 2014 and April 2015 requests for accommodation;

and that (2) the Pentagon’s May and June 2015 denials of McIver’s requests formed the basis of

the challenged adverse actions. See Mem. Op. at 10. The Court reached that conclusion because

only McIver’s August 2014 and April 2015 requests for accommodation following her own ulcer

surgery—not her June and July 2014 requests for leave to care for her mother, which predated

her surgery—constituted protected activity under the Rehabilitation Act. Id. at 9. And McIver’s

July 2015 administrative complaint, which exhausted her administrative remedies for the

retaliation claim now before the Court, referenced only the Pentagon’s May and June 2015

denials of her accommodation requests as the allegedly retaliatory activities. Id. at 8.

The Secretary is entitled to summary judgment on McIver’s retaliation claim for largely

the same reasons described above with respect to her Title VII claims. The Pentagon articulated

legitimate, non-discriminatory explanations for its May and June 2015 denials of McIver’s

requests. As Smith explained to McIver prior to the Pentagon’s May 2015 decision, “[the

Pentagon] does not have any permanent light duty positions” and “the light duty assignments that

[the Pentagon] does have are available only to those officers who are temporarily unable (for

personal medical reasons) to perform the full range of their essential duties.” Smith

Memorandum at 3. Moreover, the Pentagon reasonably denied McIver’s request “to be placed in

an alternate position until [she could] find other employment,” Def.’s Pentagon SUMF ¶ 64,

24 because the Pentagon had hired McIver as a police officer, yet she remained not “qualified to

perform the full range of essential duties as a [Pentagon] Police Officer” due to her repeated

failure to complete the required training for that role, id. ¶ 66. The Pentagon reasonably declined

to reassign McIver to a job other than the one for which they had hired her.

To the extent that McIver also challenges the Pentagon’s June 2015 denial of her request

for sick leave as unlawful retaliation, the Pentagon also articulated a legitimate,

non-discriminatory justification for that action. In its second May 8, 2015 letter, the Pentagon

specifically informed McIver that going forward, she would be required to request leave in

advance absent an emergency. Id. ¶ 67. That innocuous requirement was reasonable given that

the Pentagon had employed McIver for almost a year, McIver had spent the majority of her

employment on various forms of leave, and McIver had twice failed to attend the mandatory

training course for her position, the second time landing her in AWOL status and rendering her

unable to fulfill the duties of her position for several months to come. McIver’s June 26 request

for retroactive sick leave plainly failed to comply with the reasonable leave procedures that the

Pentagon had imposed. Id. ¶ 68. Adhering to those procedures was a legitimate and non-

discriminatory reason for denying McIver’s retroactive request for leave.

Nothing in the record suggests any causal link between the Pentagon’s May and June

2015 denials of McIver’s requests and McIver’s engagement in protected activities under the

Rehabilitation Act. Once again, in challenging the Pentagon’s proffered explanations for its

actions, McIver relies mainly on the Pentagon’s allegedly more favorable treatment of Olejnik.

But for the reasons explained above, Olejnik was not similarly situated to McIver, nor was he

treated more favorably than McIver in any relevant respects. The record contains no other

evidence that the Pentagon’s May and June 2015 denials of McIver’s requests were motivated by

25 hostility toward McIver or by retaliation for her previous engagement in protected activities

under the Rehabilitation Act. Rather, the Pentagon’s actions were justified by McIver’s repeated

inability to comply with the requirements of the job that the Pentagon had hired her to do.

Accordingly, the Court will grant the Secretary’s motion for summary judgment with respect to

McIver’s retaliation claim.

C. Failure-to-Accommodate Claim

Finally, McIver claims that the Navy failed to provide her with a reasonable

accommodation for her disability as required under the Rehabilitation Act. See Compl. ¶¶ 70–

72. 5 “To make out a prima facie case of discrimination based on a failure to accommodate, a

‘plaintiff must demonstrate by a preponderance of the evidence: (1) that she was an individual

who had a disability within the meaning of the statute; (2) that the employer had notice of her

disability; (3) that with reasonable accommodation she could perform the essential functions of

her job; and (4) that the employer refused to make such accommodations.’” McNair v. District

of Columbia,

(D.D.C. 2019) (quoting Etheridge v. FedChoice Federal

Credit Union,

(D.D.C. 2011)). For the purposes of this motion, the

Secretary concedes the first three elements of McIver’s failure-to-accommodate claim and

challenges only the fourth. Mot. for Summ. J. at 23. Accordingly, “[t]o survive summary

judgment, [McIver] must demonstrate that the [Navy] failed to provide reasonable

accommodations that would have allowed her to perform her essential employment functions.”

Bonnette v. Shinseki,

(D.D.C. 2012).

5 In denying the Secretary’s motion to dismiss that claim on exhaustion grounds, the Court previously limited the scope of the claim to allegations of events occurring within a 45-day period of November 10, 2015 (the date on which McIver filed her formal administrative complaint making the claim). See Mem. Op. at 10.

26 McIver cannot make this showing, however, because the Navy did provide a reasonable

accommodation for her disability by allowing her to wear a padded belt. Def.’s Navy SUMF

¶ 29; McIver Dep. at 185:16–186:9. McIver specifically requested this accommodation, and the

Navy granted it because it concluded that wearing the padded belt would ameliorate McIver’s

symptoms without creating a safety or security risk to McIver or her co-workers. Def.’s Navy

SUMF ¶ 29; McIver Dep. at 185:16–24. Nothing in the record suggests that McIver ever

complained to the Navy that the padded belt was inadequate. “[A]ccommodations are reasonable

if they allow the employee to perform the essential functions of the job without imposing undue

hardship on the employer.” Leiterman v. Johnson,

(D.D.C. 2014)

(quotation omitted). Because the Navy reasonably accommodated her disability, McIver cannot

survive summary judgment on her failure-to-accommodate claim.

Even if McIver had established a prima facie failure-to-accommodate claim, however, the

Secretary would be entitled to summary judgment. McIver proposed three accommodations for

her disability that the Navy considered and rejected (before authorizing the padded belt): a Level

II holster, a high ride holster, and an adaptor for her Level III holster. But the undisputed facts

establish that the Navy rejected each of these proposals for a legitimate reason: ensuring the

safety of McIver and her fellow police officers and the security of the Navy’s facilities. See

Def.’s Navy SUMF ¶¶ 19–20 (Level II holster);

¶¶ 22–25 (high ride holster);

¶¶ 27–28

(adaptor for Level III holster). “Although employers have a duty [under the Rehabilitation Act]

to engage with their employees in an interactive process to identify a reasonable accommodation,

the employer has the ultimate discretion to choose between effective accommodations.” Hannah

P. v. Coats,

(4th Cir. 2019) (internal quotation marks and citation omitted).

Here, the Navy satisfied its duty to engage in an “interactive process” with McIver,

and

27 carefully considered each of her proposals in an effort to accommodate her. However, the Navy

had the “ultimate discretion” to reject proposed accommodations that would jeopardize the safety

and security of its operations, and instead select one that would not.

In seeking to avoid summary judgment, McIver principally contends that she should have

been “downloaded”—that is, allowed to perform administrative tasks that would not have

required her to carry a firearm—in light of the pain that her equipment caused her. See Opp’n to

Mot. for Summ. J. at 18–21. This argument fails. For one thing, while the record contains

detailed evidence that McIver requested (and the Navy considered) several alterations to her

equipment, see, e.g., Def.’s Navy SUMF ¶¶ 18–29, nothing in the record suggests that McIver

ever requested to be “downloaded.” For another, Dr. Lakhani specifically noted in his medical

assessment that McIver could “work full duty without restrictions,” id. ¶ 17, which runs counter

to McIver’s argument that a “download” was necessary. Most importantly, though, the Navy’s

refusal to “download” McIver would not have violated the Rehabilitation Act because being

“downloaded” is not an accommodation that would have allowed her to perform the “essential

functions” of her role as a Navy police officer. See Bonnette,

. It is

undisputed that the essential functions of a Navy police officer include “patrolling Navy

installations in a top secret facility,” “performing access control duties,” and “working in a top

secret building,” and that these functions require the officer to “wear and utilize the required

protective equipment, gear, and firearm.” Def.’s Navy SUMF ¶ 3. Being “downloaded” would

have rendered McIver unable to perform these duties and is not, therefore, a reasonable

accommodation that the Navy was required to provide under the Rehabilitation Act.

Accordingly, the Court will grant the Secretary’s motion for summary judgment with respect to

McIver’s failure-to-accommodate claim against the Navy.

28 CONCLUSION

For the foregoing reasons, the Court will grant the Secretary’s motion for summary

judgment. A separate order consistent with this decision accompanies this memorandum

opinion.

________________________ DABNEY L. FRIEDRICH United States District Judge Date: April 28, 2020

29