United States District Court, District of Columbia
L. FRIEDRICH UNITED STATES DISTRICT JUDGE
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. Dkt. 20. For the reasons that follow, the
Court will grant the motion in part and deny it in part.
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.
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.
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.
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.
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.
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.
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(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).
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