McIver v. Esper

456 F.Supp.3d 174

Jeannie MCIVER, Plaintiff,

v.Mark ESPER, Secretary of Defense, Defendant.

No. 16-cv-1448 (DLF)

United States District Court, District of Columbia.

Signed April 28, 2020

Ikechukwu Emejuru, Emejuru Law LLC, Silver Spring, MD, for Plaintiff.

Daniel Patrick Schaefer, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendant.

MEMORANDUM OPINION

DABNEY L. FRIEDRICH, United States District Judge 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, 29 U.S.C. § 701, 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.

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. Id. ¶ 8. 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. Id. ¶ 12. 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. Id. ¶ 18.

On July 9, 2014, in an email to McVicker, McIver invoked her rights under the Family and Medical Leave Act (FMLA). Id. ¶ 20; 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. Id. ¶ 23. 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." Id.

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. Id. ¶ 31. McVicker forwarded this information to the Pentagon's Recruitment Medical Fitness Division (the Medical Division). Id. 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. Id. ¶ 32. Upon review of that documentation, the Medical Division placed McIver in a "Medical Hold Pending" status pending notice of her full recovery from surgery. Id. ¶ 33. 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 11 in support of her medical clearance. Id. ¶ 34; 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 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. Id. ("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." Id. In the same email, Smith also retroactively granted McIver's requests for leave under the FMLA, effective July 15, 2014. Id. 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. Id. ¶ 43. 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. Id. ¶ 45. But McIver subsequently requested, and the Pentagon approved, additional requests for leave extending through January 30, 2015. Id. ¶ 46.

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. Id. ¶ 47. 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. Id. ¶ 48. 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. Id. ¶ 49.

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. Id. ¶ 51. On March 4, McIver contacted McVicker to ask where she should report for work...