UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
JEANNIE MCIVER,
Plaintiff,
v. Civil Action No. 16-1448 (DLF) JIM MATTIS, Secretary, United States Department of Defense,
Defendant.
MEMORANDUM OPINION
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.
1 Ashton B. Carter was Defense Secretary when McIver filed her complaint, but Jim Mattis 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. 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.
2 ¶ 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.
II. LEGAL STANDARDS
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
3 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.
4 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 Mem. at 1–2, Dkt. 20-1. For each of
these counts, the Secretary’s challenge rests at least in part on the argument that McIver failed to
adequately exhaust administrative remedies.
The Rehabilitation Act requires a person alleging a violation to exhaust administrative
remedies by filing an administrative charge before bringing a civil suit. 29 U.S.C. § 794a(a)(1);
see also Crawford v. Duke, 867 F.3d 103, 105 (D.C. Cir. 2017) (describing the process by which
a federal employee exhausts administrative remedies). This exhaustion requirement “serves the
important purposes of giving the charged party notice of the claim and narrowing the issues for
prompt adjudication and decision.” Park v. Howard Univ., 71 F.3d 904, 907 (D.C. Cir. 1995)
(internal quotation marks and alteration omitted).
The “usual practice” under the Federal Rules of Civil Procedure “is to regard exhaustion
as an affirmative defense” that need not be pleaded by the plaintiff. Jones v. Bock, 549 U.S. 199,
5 212 (2007); see also Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997) (“Because
untimely exhaustion of administrative remedies is an affirmative defense [in the Title VII
context], the defendant bears the burden of pleading and proving it.”). But for Rehabilitation Act
claims, a plaintiff’s failure to file an administrative complaint—and thus to exhaust—precludes
jurisdiction, Doak v. Johnson, 798 F.3d 1096, 1103 (D.C. Cir. 2015), and “the party asserting
federal jurisdiction when it is challenged has the burden of establishing it,” Daimler Chrysler
Corp. v. Cuno, 547 U.S. 332, 342 n.3 (2006). In determining whether it has jurisdiction, a court
“may undertake an independent investigation” that examines “facts developed in the record
beyond the complaint.” Settles, 429 F.3d at 1107 (internal quotation marks omitted). Even for
aspects of exhaustion that are not jurisdictional—such as the plaintiff’s failure to comply with
administrative time limits, Doak, 798 F.3d at 1104—a defendant may raise exhaustion as an
affirmative defense in a motion to dismiss “when the facts that give rise to the defense are clear
from the face of the complaint.” Smith–Haynie v. District of Columbia, 155 F.3d 575, 578 (D.C.
Cir. 1998).
Here, the facts relevant to exhaustion are undisputed and are clear from McIver’s EEO
documents, which are judicially noticeable public records. See Dkt. 20-12; Dkt. 25-6; Dkt. 25-
12; Bowden, 106 F.3d at 437 (considering “the pleadings and undisputed documents in the
record” while reaching the merits on a motion to dismiss); Vasser v. McDonald, 228 F. Supp. 3d
1, 10 (D.D.C. 2016) (“[C]ourts have taken judicial notice of Final Agency Decisions, especially
for background information such as dates of filings.”); Williams v. Chu, 641 F. Supp. 2d 31, 35
(D.D.C. 2009) (“A plaintiff’s EEOC charge and the agency’s determination are both public
records, of which this Court may take judicial notice.” (quotation marks and alteration omitted)).
6 McIver failed to adequately exhaust administrative remedies with respect to her disability
claims against the Pentagon Force Protection Agency because she provided no notice of any
disability claim in her administrative charge. On August 29, 2014, McIver filled out a standard
EEO charge form, which directs the complainant to check boxes corresponding to his or her
alleged form(s) of discrimination (race, religion, etc.) and also asks the complainant to describe
the specific details of the charge in the complainant’s own words. See Dkt. 25-6 at 2. McIver
checked boxes corresponding to “race” and “sex” but left unchecked the box corresponding to
“disability.” Id. In the details section, moreover, McIver provided no information that could be
read to “express or even hint” at a disability claim, Park, 71 F.3d at 907, and instead complained
that she was required to attend training and that her request for a Family Medical Leave Act
accommodation was denied, id.; see also McIver Opp’n at 16, Dkt. 24.
That raises the question whether failure to exhaust precludes jurisdiction or is instead a
merits defect when the plaintiff filed a charge with the appropriate agency but did not provide
notice of the particular claim later pursued in court. A plaintiff’s “wholesale failure to file an
administrative complaint or to obtain any administrative decision at all” precludes jurisdiction.
Doak, 798 F.3d at 1103 (citing Spinelli v. Goss, 446 F.3d 159, 162 (D.C. Cir. 2006)). On the
other hand, “issues concerning how a claimant participates in [the] administrative process”—for
example, compliance with time limits created by regulation—“are not of jurisdictional moment.”
Id. at 1104. The Court concludes that a failure to provide notice of a particular claim is no
different—as far as that claim goes—than a wholesale failure to file. See Marshall v. Fed.
Express Corp., 130 F.3d 1095, 1098 (D.C. Cir. 1997) (“Allowing a complaint to encompass
allegations outside the ambit of the predicate [administrative] charge would circumvent the
[appropriate agency’s] investigatory and conciliatory role, as well as deprive the charged party of
7 notice of the charge, as surely as would an initial failure to file a timely [administrative]
charge.”). The Court will therefore dismiss McIver’s claims alleging disability discrimination
against the Pentagon Force Protection Agency for lack of jurisdiction.
As for the retaliation claim, however, McIver did check the box corresponding to
“reprisal for previous EEO activity” in her second EEO charge filed against the Pentagon Force
Protection Agency on July 20, 2015. See Dkt. 25-11 at 2. (As in the first charge, McIver left the
disability box unchecked and the details section contained nothing to indicate a disability claim.)
In the details section, McIver noted that she had been denied requests for accommodation in May
and June 2015. Id. To the extent McIver’s current allegations “grow[] out of” and are
“reasonably related to” these denied requests, Park, 71 F.3d at 907 (quotation marks omitted),
they are adequately exhausted.
On the merits, an employee claiming retaliation must ultimately prove “(1) that [the]
employee engaged in statutorily protected activity; (2) that the employee suffered a materially
adverse action by the employee’s employer; and (3) that a causal link connects the two.”
Howard R.L. Cook & Tommy Shaw Found. ex rel. Black Emps. of Library of Cong., Inc. v.
Billington, 737 F.3d 767, 772 (D.C. Cir. 2013). “To survive [a] motion to dismiss, [a] complaint
must contain sufficient factual matter, accepted as true, to plausibly establish those three
elements.” Id. (internal quotation marks omitted).
The Secretary challenges the claim only on the first element, arguing that McIver fails to
allege activity protected by the Rehabilitation Act. See Sec’y Mem. at 18–19. The
Rehabilitation Act incorporates the antiretaliation provision of the Americans with Disabilities
Act, see 29 U.S.C. § 791(f); Solomon v. Vilsack, 628 F.3d 555, 559–60 (D.C. Cir. 2010); Jarvis
v. Potter, 500 F.3d 1113, 1125 (10th Cir. 2007), which protects an employee from discrimination
8 on the ground that the employee has “opposed any act or practice made unlawful by [the statute]
or because such individual made a charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under [the statute],” 42 U.S.C. § 12203. The
Rehabilitation Act “governs employee claims of handicap discrimination against the Federal
Government,” and “[i]ts basic tenet is that the Government must take reasonable affirmative
steps to accommodate the handicapped, except where undue hardship would result.” Barth v.
Gelb, 2 F.3d 1180, 1183 (D.C. Cir. 1993).
McIver argues that she engaged in statutorily protected activity by requesting reasonable
accommodations on June 10, July 7, July 9, July 10, and August 28, 2014, and April 8, 2015.
McIver Opp’n at 9 (citing Compl. ¶¶ 20–22, 32, 37). “The act of requesting in good faith a
reasonable accommodation is a protected activity under . . . Rehabilitation Act.” Vilsack, 763
F.3d at 15. The June and July 2014 requests for accommodation cannot form the basis for a
Rehabilitation Act retaliation claim because they occurred before McIver’s surgery and were
requests to care for her mother, which the Rehabilitation Act does not protect.
The August 2014 and April 2015 requests, however, do seem to have involved McIver’s
alleged disability. See Compl. ¶¶ 30, 32 (alleging that after being cleared for light-duty work
after her surgery, “McIver . . . sought accommodation for light duty work” and that “[o]n August
28, 2014, McVicker ignored the request”); id. ¶ 37 (“On April 8, 2015, McIver again requested
for reasonable accommodation or for ‘an alternate course of action’ as requested by Smith. On
May 8, 2015, Smith denied McIver’s request to be placed in an alternate position until she could
find other employment, for permanent light duty status.”). The complaint’s description of the
April 2015 request is unclear, but the Secretary provides no record citation suggesting that either
the August 2014 or April 2015 request did not involve McIver’s disability. See generally Sec’y
9 Mem. at 18–19. The retaliation count survives, therefore, insofar as (1) it alleges retaliation
against McIver for her August 2014 and April 2015 requests for accommodation; and (2) the
denial of McIver’s May and June 2015 requests form the basis of the adverse action or are
reasonably related to the retaliation.
That leaves McIver’s claim of discrimination against the Navy Yard. See Dkt. 20-12 at
8–10 (McIver filing a formal administrative complaint against the Navy Yard for sex and
disability discrimination); Compl. ¶¶ 70–72 (alleging that the Navy Yard unlawfully denied
McIver a reasonable accommodation). The Secretary moves to partially dismiss this count for
failure to exhaust. Federal regulation provides that “[a]ggrieved persons who believe they have
been discriminated against on the basis of race, color, religion, sex, national origin, age,
disability, or genetic information must consult a Counselor prior to filing a complaint in order to
try to informally resolve the matter.” 29 C.F.R. § 1614.105(a). The aggrieved person must
initiate this consultation “within 45 days of the date of the matter alleged to be discriminatory.”
Id. § 1614.105(a)(1); see also Doak, 798 F.3d at 1099. McIver first contacted a counselor about
the Navy Yard on November 10, 2015. See Dkt. 20-12 at 14. The Secretary argues that
McIver’s the Navy Yard count should be limited to allegations occurring on or after September
25, 2015, which is forty-six days prior. See Sec’y Mem. at 23.
The Secretary’s argument is correct. “[D]iscrete discriminatory acts are not actionable if
time barred, even when they are related to acts alleged in timely filed charges.” Nat’l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002). The Court will accordingly limit the
Navy Yard count to allegations of events occurring no more than forty-five days before
November 10, 2015.
10 CONCLUSION
For the foregoing reasons, the Court grants in part and denies in part the Secretary’s
Motion for Partial Dismiss. Dkt. 20. Specifically, Counts 1 and 5 against the Pentagon Force
Protection Agency (disability discrimination under the Rehabilitation Act) are dismissed for lack
of jurisdiction. See Fed. R. Civ. P. 12(b)(1), 12(h)(3). Count 2 against the Pentagon Force
Protection Agency (retaliation under the Rehabilitation Act) survives insofar as (1) it alleges
retaliation against McIver for her August 2014 and April 2015 requests for accommodation; and
(2) the denial of McIver’s May and June 2015 requests form the basis of that retaliation or are
reasonably related to the retaliation. The count against the Navy Yard (disability discrimination
under the Rehabilitation Act) is limited to allegations of events occurring no more than forty-five
days before November 10, 2015. The other counts survive in full. A separate order consistent
with this decision accompanies this memorandum opinion.
________________________ DABNEY L. FRIEDRICH United States District Judge Date: July 24, 2018