UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


MCGILL, THU

v.

MUNOZ, GEORGE


97-7123a

D.C. Cir. 2000


*	*	*


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


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.


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


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-




__________

n 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




__________

n 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-




__________

n 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.




__________

n 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 




__________

n 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 


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


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 




__________

n 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


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 




__________

n 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


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