United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 15, 1999 Decided February 18, 2000
No. 97-7123
Thu McGill,
Appellee
v.
George MuNoz,
President and Chief Executive Officer,
Overseas Private Investment Corporation,
Appellant
Appeal from the United States District Court
for the District of Columbia
(No. 95cv01953)
Morgan D. Hodgson argued the cause for appellant. With
her on the briefs was Shannen W. Coffin.
Thu Minh McGill, appearing pro se, argued the cause and
was on the brief for appellee.
Joanne Zimolzak, appointed by this court, argued the
cause as amicus curiae on the side of appellee. With her on
the brief was Tami Lyn Azorsky.
Before: Williams, Rogers, and Garland, Circuit Judges.
Garland, Circuit Judge: Plaintiff Thu McGill filed suit
against her former employer, the Overseas Private Invest-
ment Corporation (OPIC), alleging, inter alia, that OPIC
discriminated against her in violation of the Rehabilitation
Act. The district court denied OPIC's post-trial motion for
judgment as a matter of law on that claim, and OPIC
appealed. We hold that because McGill failed to offer evi-
dence from which a reasonable jury could have concluded that
OPIC discriminated against her, the decision of the district
court must be reversed.
I
OPIC is a federal agency established by Congress to
"facilitate the participation of United States private capital
and skills in the economic and social development of less
developed countries." 22 U.S.C. s 2191. McGill was em-
ployed there as a secretary in the Department of Legal
Affairs. On October 18, 1995, she sued her employer, citing
violations of two statutes. First, she alleged that OPIC
discriminated against her on the basis of her race and nation-
al origin, and retaliated against her for making discrimination
complaints, in violation of Title VII of the Civil Rights Act of
1964, 42 U.S.C. ss 2000e et seq. Second, she alleged that
OPIC discriminated against her on account of her disability
(depression), and failed to reasonably accommodate that dis-
ability, in violation of the Rehabilitation Act of 1973, 29 U.S.C.
ss 701 et seq.
The district court granted OPIC's motion for summary
judgment against McGill on all of the Title VII claims.
Plaintiff proceeded to trial on the remaining Rehabilitation
Act claims and secured a $75,000 verdict. After trial, the
court granted OPIC's motion for judgment as a matter of law
against McGill on the reasonable accommodation claim, but
denied OPIC's motion for judgment as a matter of law on the
disability discrimination claim. Because the jury had not
apportioned the recovery between the two claims, the court
let McGill's $75,000 judgment stand. See McGill v. Callear,
973 F. Supp. 20, 23-24 (D.D.C. 1997).
Both McGill and OPIC appealed. A prior panel of this
court rejected McGill's appeal, affirming both the order
granting OPIC summary judgment against her on the Title
VII claims, and the order granting judgment as a matter of
law against her on the reasonable accommodation claim. See
McGill v. MuNoz, 172 F.3d 920 (D.C. Cir. 1999) (unpublished
table decision). OPIC's appeal was then set for argument.
Although McGill was represented by counsel at trial, she
appealed pro se, and we appointed an amicus curiae to
present arguments on her behalf.1 We now decide the sole
remaining issue: whether the district court improperly de-
nied OPIC's motion for judgment as a matter of law on the
claim of disability discrimination under the Rehabilitation Act.
II
We review de novo a trial court's denial of a motion for
judgment as a matter of law. See Duncan v. Washington
Metro. Area Transit Auth., No. 99-7073, 2000 WL 45501, at
*2 (D.C. Cir. Jan. 28, 2000). We do not, however, lightly
disturb a jury verdict. Judgment as a matter of law is
appropriate only if "the evidence and all reasonable infer-
ences that can be drawn therefrom are so one-sided that
reasonable men and women could not" have reached a verdict
in plaintiff's favor. Id. (quoting Curry v. District of Colum-
bia, 195 F.3d 654, 659 (D.C. Cir. 1999) (internal quotation
omitted)).
The Rehabilitation Act provides that "[n]o otherwise quali-
fied individual with a disability ... shall, solely by reason of
her or his disability, be ... subjected to discrimination under
any program or activity ... conducted by any Executive
agency...." 29 U.S.C. s 794. Thus, assuming without de-
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1 For purposes of this opinion, we will attribute to McGill argu-
ments made either by her or by amicus.
ciding that McGill is an "otherwise qualified individual with a
disability," we may uphold the jury's verdict only if McGill
proved that she was subjected to discrimination "by reason of
her disability." Id.; see Swanks v. Washington Metro. Area
Transit Auth., 179 F.3d 929, 934 (D.C. Cir. 1999).
A plaintiff may always prove a claim of discrimination by
introducing direct evidence of discriminatory intent. As an
alternative, when the defendant denies its actions were moti-
vated by the plaintiff's disability, the plaintiff may employ the
McDonnell Douglas burden-shifting framework to bring her
Rehabilitation Act claim before a jury.2 See Aka v. Washing-
ton Hosp. Ctr., 156 F.3d 1284, 1288 (D.C. Cir. 1998) (en banc);
Barth v. Gelb, 2 F.3d 1180, 1186 (D.C. Cir. 1993); see also
Marshall v. Federal Express Corp., 130 F.3d 1095, 1099-1100
(D.C. Cir. 1997). Once a case has been fully tried on the
merits and submitted to the jury, however, the McDonnell
__________
2 The Supreme Court has described the McDonnell Douglas
framework as follows:
First, the plaintiff has the burden of proving by the preponder-
ance of the evidence a prima facie case of discrimination.
Second, if the plaintiff succeeds in proving the prima facie case,
the burden shifts to the defendant 'to articulate some legiti-
mate, nondiscriminatory reason for the employee's rejection.'
Third, should the defendant carry this burden, the plaintiff
must then have an opportunity to prove by a preponderance of
the evidence that the legitimate reasons offered by the defen-
dant were not its true reasons, but were a pretext for discrimi-
nation.
...
The ultimate burden of persuading the trier of fact that the
defendant intentionally discriminated against the plaintiff re-
mains at all times with the plaintiff.
Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53
(1981) (quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802 (1973)) (citations omitted). In Barth, we noted the applicability
of this framework, originally developed for actions brought under
Douglas framework "drops from the case" and only the
ultimate question remains: "[whether] the defendant inten-
tionally discriminated against the plaintiff." United States
Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715
(1983) (quoting Texas Dep't of Community Affairs v. Bur-
dine, 450 U.S. 248, 255 n.10, 253 (1981)) (alteration in origi-
nal); accord St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502,
510-11 (1993); Mungin v. Katten Muchin & Zavis, 116 F.3d
1549, 1554 (D.C. Cir. 1999).3 On appeal, that question under-
goes further refinement: we ask only whether a reasonable
jury could have found such intentional discrimination. See
Swanks, 179 F.3d at 933; Mungin, 116 F.3d at 1554.
At trial, McGill alleged that OPIC discriminated against
her in two respects during the summer of 1994. First, she
was required to make up time she took off from work to
participate in an aerobics class. Second, she was required to
submit medical documentation when she used sick leave
credits for absences from work.4 We apply the legal analysis
set forth above to each of these allegations.
A
At some time prior to January 1994, McGill began taking
part in a mid-day aerobics class conducted on OPIC's premis-
__________
Title VII, to claims of disability discrimination under the Rehabilita-
tion Act. See Barth, 2 F.3d at 1186.
3 Although plaintiff is correct in noting that the elements of a
"prima facie case" may vary depending upon the circumstances of
the allegations, see Burdine, 450 U.S. at 253 n.6, the plaintiff's
"ultimate burden" is always to prove "that she has been the victim
of intentional discrimination," id. at 256.
4 These are the only two examples of discriminatory treatment
discussed in the brief of amicus curiae. The district court noted
that "[p]laintiff also testified about training opportunities but the
record does not reflect a colorable claim of disparate treatment on
that basis." McGill, 973 F. Supp. at 22 n.2. We agree, and reach
the same conclusion regarding other claims raised in plaintiff's pro
se brief but not mentioned by either the district court or amicus.
es. In July of 1994, McGill's supervisors became concerned
that she was spending an inordinate amount of time away
from her desk, particularly at lunchtime. McGill explained
that, in addition to the authorized lunch break, she needed an
extra half hour to shower and dress after the aerobics class.
In response, McGill's supervisors advised her by memoran-
dum that she would be permitted to take "one and one-half
hour" off for the class, but would have to "make up the extra
half hour" that was "beyond the time provided for lunch."
Pl.'s Ex. E (J.A. at 49).
McGill contends that OPIC discriminated against her on
account of her mental disability by requiring her to make up
the extra half hour. Lacking any direct evidence of discrimi-
natory intent, McGill argues that OPIC's intent can be in-
ferred from its disparate treatment of her; she asserts that
other, similarly-situated employees who participated in the
same class did not have to make up any time.5 Yet, while
there was testimony that numerous employees attended the
aerobics class, which lasted forty minutes, no witness testified
that any employee other than McGill took more than the
allotted lunch hour to return to work.
McGill's argument that others were treated more favorably
than she reduces to an argument that others "must" have
taken off more than just the lunch hour. For this, plaintiff
relies on testimony by Frederick Jenney, one of her attorney
supervisors, who stated that "it could take an hour-and-a-
half" for someone "to take an aerobics class and get showered
and everything in the middle of the day." J.A. at 763. But
Jenney's speculation that it "could" take an hour-and-a-half is
not evidence that it "did" take anyone--other than plaintiff--
that long. See Brown v. Brody, 199 F.3d 446, 458-59 (D.C.
__________
5 Cf. Holbrook v. Reno, 196 F.3d 255, 261 (D.C. Cir. 1999) (noting
that "[t]o establish a prima facie case under the McDonnell Douglas
framework, [plaintiff] must demonstrate (1) that she is a member of
a protected class; (2) that she was similarly situated to an employee
who was not a member of the protected class; and (3) that she and
the similarly situated person were treated disparately").
Cir. 1999) (holding speculation insufficient to avoid summary
judgment); Al-Zubaidi v. M.A. Ijaz, 917 F.2d 1347, 1348 (4th
Cir. 1990) (holding that "mere speculation is insufficient" to
support a jury verdict) (internal quotation omitted). Indeed,
immediately after the above-quoted remark, Jenney testified
that he knew of no one else in the department who did take
an hour-and-a-half off to attend the class. See J.A. at 765.
The time taken by McGill, he said, "was an unusual situation."
Id. The only other evidence in the record is to the same
effect. See J.A. at 458 (testimony of office manager Connie
Downs, stating that OPIC "just didn't have problems with
other people being away for such a long period of time").6
In sum, because plaintiff failed to offer any evidence that
she was treated unfavorably compared to other employees,7
and because she offered no other evidence of discrimination,
we find that no reasonable jury could have concluded that the
compensatory time requirement was the product of intention-
al discrimination.
B
McGill also contends that OPIC discriminated against her
by requiring her to provide a doctor's note for absences from
work for which she sought to use sick leave. Relying once
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6 McGill cites the testimony of secretary Ida Kingsberry as
assertedly supporting her claim that none of the other secretaries
who participated in the class were required to compensate for extra
time away from their desks. See McGill Br. at 8, 11; Amicus Br. at
44-45. Kingsberry, however, did not testify that she (or any of the
others) took off more than the lunch hour. To the contrary,
Kingsberry testified that she "d[id] not ... think that Thu McGill
was treated less favorably than others" in the department. J.A. at
375.
7 See Neuren v. Adduci, Mastriani, Meeks & Schill, 43 F.3d 1507,
1514 (D.C. Cir. 1995) (holding plaintiff failed to demonstrate dispa-
rate treatment because she failed to show she was similarly situated
to co-worker to whom she compared herself).
again on indirect evidence of discriminatory intent, McGill
asserts that office policy did not require documentation for
such absences, and thus that OPIC's claimed reliance on such
policy was pretextual.8
OPIC's written policy defines "sick leave" as "a period of
approved absence with pay from official duty," which is
authorized only in limited circumstances, including "[w]hen
the employee is unable to satisfactorily perform the assigned
duties because of sickness [or] mental illness." J.A. at 308.
The policy states that it is the supervisor's responsibility to
determine "that the nature of the employee's illness was such
to incapacitate him for his job," and provides that "[a] medical
certificate signed by appropriate medical authority is general-
ly required for sick leave exceeding 3 days duration." Id.
Because McGill was never absent for more than three days at
a time, she contends that OPIC violated its policy by requir-
ing written documentation.
In fact, there is no evidence that OPIC violated its sick
leave policy. That policy does not end with the passages
quoted above. It also includes the following procedures for
dealing with the apparent abuse of sick leave:
When the employee appears to be using sick leave im-
properly (for example, chronic use of brief periods of sick
leave), the employee may be required to comply with
special leave procedures more stringent than those ap-
plied to other employees. For example, the employee
may be required ... to provide evidence to substantiate
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8 Cf. Aka, 156 F.3d at 1289 (noting that one form of evidence from
which a jury may be able to infer discriminatory intent is "evidence
the plaintiff presents to attack the employer's proffered explanation
for its actions"); id. at 1290 n.5 (noting that the "sufficiency of the
finding of pretext to support a finding of discrimination depends on
the circumstances of the case") (quoting Fisher v. Vassar College,
114 F.3d 1332, 1338 (2d Cir. 1998) (en banc)).
brief periods of illness. An employee who is being
placed on leave restriction shall be notified in writing, in
advance, of the procedures and their duration. At the
end of six months, the employee's record will be reviewed
to see if the restrictions can be lifted.
Id. (emphasis added). It is this aspect of the policy that
OPIC applied to McGill.
In the summer of 1994, McGill's office manager, Connie
Downs, noted that McGill had missed work five times in a
one-month period. The absences conformed to a clear pat-
tern--each time McGill received a poor performance apprais-
al, she took off the following one or two days of work. See id.
at 59, 409. Responding to what appeared to her to be an
abuse of sick leave, Downs sent McGill a memorandum,
entitled "Special Leave Procedures." Id. at 59. The memo
advised McGill that her "pattern" of leave "raise[d] a question
about whether you are using sick leave for the purposes for
which it is intended," and therefore "warrant[ed] special leave
procedures." Id. at 59-60. Pursuant to OPIC's written
policy, which was quoted in the letter, Downs instructed
McGill that she would be required to provide a physician's
certificate when she wanted to take sick leave for future
absences. See id. at 60. The memorandum also notified
McGill that the requirement would be reviewed in six months
to determine whether it could be rescinded. See id.
As Downs' memorandum fully complied with the written
sick leave policy set forth above,9 there is no evidence to
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9 McGill contends that a fragment of Downs' trial testimony
shows that Downs did not act in compliance with OPIC's policy,
which expressly permits sick leave for both physical and mental
illness. Although at one point Downs did testify that she doubted
McGill's need for leave because McGill "didn't appear ... physical-
ly sick," J.A. at 410, in context it is clear that Downs was distin-
guishing between real and feigned illness, rather than between
kinds of illnesses. See, e.g., id. ("[T]he question is whether you're
using sick leave for actual sick leave, or whether you're just using
sick leave for leave that you just want to take.").
support McGill's contention that it was mere pretext. Nor
did McGill furnish other evidence of intentional disparate
treatment--or, for that matter, of disparate treatment at all.
McGill offered no evidence that employees with similarly
suspicious patterns of absenteeism were treated any differ-
ently than she was. See Neuren v. Adduci, Mastriani,
Meeks & Schill, 43 F.3d 1507, 1514 (D.C. Cir. 1995) (finding
that terminated employee failed to show that retained em-
ployee had similar difficulty in getting along with others in
the firm). In fact, McGill offered no evidence that employees
with a similar frequency of absenteeism--whether suspicious
or not--were treated any differently. See Mungin, 116 F.3d
at 1554, 1558 (overturning jury verdict where plaintiff failed
to show that employer's explanation for his treatment was
pretextual, or that similarly-situated colleagues were treated
more favorably).
In short, McGill offered no evidence--either direct or cir-
cumstantial--from which a reasonable jury could have con-
cluded that OPIC imposed the medical documentation re-
quirement because of her disability.
III
For the foregoing reasons, we conclude that no reasonable
jury could have found that OPIC intentionally discriminated
against McGill. We therefore reverse the order denying in
part OPIC's motion for judgment as a matter of law, and
remand the case for entry of judgment for defendant. See
Mungin, 116 F.3d at 1558; see also Scott v. District of
Columbia, 101 F.3d 748, 760 (D.C. Cir. 1997) (reversing and
remanding when "the facts, viewed in the light most favorable
to [plaintiff], indicate that he cannot recover on any of his
claims").