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McIver v. Mattis

United States District Court, District of Columbia

July 24, 2018

JIM MATTIS, Secretary, United States Department of Defense, Defendant.



         Jeannie McIver brings claims against the U.S. Department of Defense under Title VII of the Civil Rights Act of 1964 and the Rehabilitation Act. Before the Court is Defense Secretary Jim Mattis's Motion for Partial Dismissal pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure.[1] Dkt. 20. For the reasons that follow, the Court will grant the motion in part and deny it in part.

         I. BACKGROUND

         McIver categorizes her factual allegations and counts into two classes: those related to her employment with the Pentagon Force Protection Agency and those related to her employment with the Navy Yard. Both are agencies within the Department of Defense. The Court will recount the facts described in the amended complaint, though it is at times difficult to follow.

         In early 2014, McIver became a police officer recruit with the Pentagon Force Protection Agency. Am. Compl. ¶ 14, Dkt. 18. One of McIver's supervisors, Erik McVicker, told her that she would need to attend a training program in July 2014. Id. ¶ 18. In June, however, McIver informed her superiors that she would be unable to attend the training because she needed to care for her disabled mother. Id. ¶¶ 20-25. She submitted a request for an alternative work schedule, but it was denied. Id. ¶ 22-23. The complaint states that McIver then “invoked her [Family and Medical Leave Act] rights” to seek another accommodation. Id. ¶ 23. When McVicker ordered McIver to attend the training program, McIver responded that she could not because she needed to care for her mother. Id. ¶ 25. McVicker then submitted McIver's accommodation request and asked her to resign. Id. ¶ 26. McIver was subsequently placed on AWOL status and McVicker stated that he would remove her from federal service if she did not attend the training. Id. ¶ 27- 28. McIver alleges that a white male who was hired as a police officer recruit with her did not have to attend the training. Id. ¶¶ 38-41.

         Around July 20, 2014, McIver underwent emergency surgery for a ruptured ulcer. Id. ¶ 29. She subsequently requested an accommodation for light-duty work, but on August 28, McVicker instead began to remove her as an officer recruit. Id. ¶ 32. McIver alleges that she was never accommodated and instead had to use excessive amounts of leave time from July 2014 to January 2015. Id. ¶ 33. On August 29, 2014, McIver filed an Equal Employment Opportunity (EEO) complaint for race and sex discrimination. Id. ¶ 34; Dkt. 25-6 at 2.

         In March 2015, one of McIver's supervisors placed her on AWOL status on the grounds that she had used excessive medical leave and was negatively impacting employee morale. Id. ¶¶ 35-36. In April 2015, McIver sought accommodation for an “alternate course of action.” Id. ¶ 37. This was denied in May 2015. Id. McIver filed another EEO charge against the Pentagon Force Protection Agency, this time for retaliation, on July 20, 2015. Dkt. 25-11.

         Around June 2015, the Navy Yard hired McIver as a police officer. Id. ¶ 44. Because of her ruptured ulcer, however, McIver's capabilities were limited. Id. ¶ 45. On September 21, she gave her supervisor a medical letter indicating that her protective gear was causing complications and requested to work without the gear. Id. ¶¶ 47-48. Her supervisors denied the request the next day and informed her that she was relieved of “duty status.” Id. ¶ 48. On September 24, one of the supervisors rejected her requests for a light-duty status. Id. ¶¶ 50-51. On October 1, McIver requested a different holster and presented another medical letter, but her request was denied the next day. Id. ¶ 52. McIver alleges that a similarly situated employee was allowed to work without protective gear or a holster. Id. ¶ 53. McIver filed another EEO complaint, this time against the Navy Yard for sex and disability discrimination, on March 7, 2016. Id. ¶ 54; Dkt. 20-12 at 8-10.

         McIver sued the Secretary in July 2016. In February 2017, following an initial round of briefing on the Secretary's motion for partial summary judgment on the pleadings under Rule 12(c), McIver filed an amended complaint. Dkt. 18. Thereafter, the Secretary filed the instant motion. The case was reassigned to the undersigned judge on December 5, 2017.


         Rule 12(b)(1) of the Federal Rules of Civil Procedure allows a defendant to move to dismiss an action for lack of subject-matter jurisdiction. Fed.R.Civ.P. 12(b)(1). Federal law empowers federal district courts to hear only certain kinds of cases, and it is “presumed that a cause lies outside this limited jurisdiction.” Kokkonen v. Guardian Life Ins., 511 U.S. 375, 377 (1994). When deciding a Rule 12(b)(1) motion, the court must “assume the truth of all material factual allegations in the complaint and construe the complaint liberally, granting plaintiff the benefit of all inferences that can be derived from the facts alleged, and upon such facts determine [the] jurisdictional questions.” Am. Nat. Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011) (internal quotation marks omitted). But the court “may undertake an independent investigation” that examines “facts developed in the record beyond the complaint” in order to “assure itself of its own subject matter jurisdiction.” Settles v. U.S. Parole Comm'n, 429 F.3d 1098, 1107 (D.C. Cir. 2005) (internal quotation marks omitted). A court that lacks jurisdiction must dismiss the action. Fed.R.Civ.P. 12(b)(1), 12(h)(3).

         Rule 12(b)(6), meanwhile, allows a defendant to move to dismiss the complaint for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). To survive a Rule 12(b)(6) motion, a complaint must contain factual matter sufficient to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A facially plausible claim is one that “allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). This standard does not amount to a specific probability requirement, but it does require “more than a sheer possibility that a defendant has acted unlawfully.” Id. A complaint need not contain “detailed factual allegations, ” but alleging facts that are “merely consistent with a defendant's liability . . . stops short of the line between possibility and plausibility.” Id. (internal quotation marks omitted). Ultimately, “[d]etermining whether a complaint states a plausible claim for relief [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679. When deciding a Rule 12(b)(6) motion, the court may consider only the complaint itself, documents attached to the complaint, documents incorporated by reference in the complaint, and judicially noticeable materials. EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997). A Rule 12(b)(6) dismissal “is a resolution on the merits and is ordinarily prejudicial.” Okusami v. Psychiatric Inst. of Wash., Inc., 959 F.2d 1062, 1066 (D.C. Cir. 1992).

         III. ANALYSIS

         McIver asserts six counts in total. Am. Compl. ¶¶ 55-72. Two are Title VII claims, and the Secretary does not seek to dismiss those. The other four are Rehabilitation Act claims. Two of the Rehabilitation Act claims allege that the Pentagon Force Protection Agency discriminated against her on the basis of disability. One alleges that Pentagon Force Protection Agency unlawfully retaliated against her. And the other alleges that the Navy Yard discriminated against her on the basis of disability. The Secretary moves to dismiss the Rehabilitation Act counts related to the Pentagon Force Protection Agency and moves for partial dismissal of the Rehabilitation Act count related to the Navy Yard. Sec'y ...

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