McGill v. MuNoz

• Decision Date: 18 February 2000
• Docket Number: No. 97-7123,97-7123
• Citation: 203 F.3d 843
• Parties: (D.C. Cir. 2000) Thu McGill, Appellee v. George MuNoz, President and Chief Executive Officer, Overseas Private Investment Corporation, Appellant
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 843

203 F.3d 843 (D.C. Cir. 2000)

Thu McGill, Appellee v. George MuNoz, President and Chief Executive Officer, Overseas Private Investment Corporation, Appellant

No. 97-7123

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 15, 1999

Decided February 18, 2000

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 Investment 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 evidence 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. § 2191. McGill was employed 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 national 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. §§ 2000e et seq. Second, she alleged that OPIC discriminated against her on account of her disability (depression), and failed to reasonably accommodate that disability, in violation of the Rehabilitation Act of 1973, 29 U.S.C. §§ 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 denied 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., 201 F.3d 482, 485 (D.C. Cir. 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 inferences 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 Columbia, 195 F.3d 654, 659 (D.C. Cir. 1999) (internal quotation omitted)).

The Rehabilitation Act provides that "[n]o otherwise qualified 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. § 794. Thus, assuming without deciding 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 motivated 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. Washington 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

Douglas framework "drops from the case" and only the ultimate question remains: "[whether] the defendant intentionally 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. Burdine, 450 U.S. 248, 255 n.10, 253 (1981)) (alteration in original); 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 undergoes 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 premises. 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 memorandum 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 discriminatory intent, McGill argues that OPIC's intent can be inferred 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-ahalf" 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. 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 intentional 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 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...