                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA
____________________________________
                                    )
MARGOT CARRINGTON,                  )
individually, on behalf of          )
others similarly situated,          )
                                    )
                        Plaintiff,  )
                                    )
        v.                          )                Civil Action No. 18-0880 (ABJ)
                                    )
MICHAEL R. POMPEO,                  )
in his official capacity as         )
Secretary, United States            )
Department of State,                )
                                    )
                        Defendant.  )
____________________________________)


                                 MEMORANDUM OPINION

       Plaintiff Margot Carrington is an officer in the United States Foreign Service. She has

brought this action on her own behalf and on behalf of a putative class of other disabled Foreign

Service Officers (“FSOs”) against Michael R. Pompeo in his official capacity as Secretary of the

United States Department of State (the “Department”). The complaint contains three counts; it

alleges that: 1) the Department violated the Rehabilitation Act of 1973, 29 U.S.C. §§ 791 et seq.,

(“Rehabilitation Act” or “Act”) by failing to grant reasonable accommodations to plaintiff and

other disabled FSOs seeking promotions to the Senior Foreign Service (“SFS”); 2) the

Department’s “inflexible” hardship post requirement has a disproportionate negative impact on

disabled employees including the plaintiff, and therefore it violates the Act; and 3) plaintiff and

other disabled employees were subjected to disparate treatment by the Department as a result of

its hardship post requirement. See generally Am. Compl. [Dkt. # 16]. Defendant has moved to

dismiss the complaint for failure to state a claim and lack of subject matter jurisdiction. Def.’s
Mot. to Dismiss [Dkt. # 20] (“Def.’s Mot.”); Def.’s Mem. in Supp. of Def.’s Mot. [Dkt. # 20]

(“Def.’s Mem.”). Because the Court finds that plaintiff has failed to state a claim as to each count,

defendant’s motion to dismiss is granted.

                                         BACKGROUND

I.     Factual Background
       The following relevant facts are alleged in the amended complaint, except where noted.

Plaintiff joined the Foreign Service in January 1993 and eventually achieved a rank of FS-01 as

an FSO. Am. Compl. ¶ 15. FS-01 is the highest rank an FSO can ordinarily achieve before she is

promoted to the Senior Foreign Service (“SFS”) or terminated for failing to receive that promotion

within a particular period of time. Id. ¶ 25.

       At all times relevant to the complaint, plaintiff suffered from an immunological disorder

and was recognized by the Department as someone with a disability for purposes of the

Rehabilitation Act. Am. Compl. ¶¶ 15–16. Since 2004, plaintiff has had a Class 2 or “Post

Specific” medical clearance, which means she must get specific clearance from the Department’s

medical bureau before seeking assignment to a post. 1 See Email from Ernest Davis, M.D., Director

of Medical Clearances, to Laurie Trost (Feb. 2, 2016) (“Dr. Davis Email”), Ex. 4 to Decl. of Trent

Buatte, Ex. 2 to Def.’s Mot. [Dkt. # 20-2] (“Buatte Decl.”) at ECF 96. 2




1      According to the declaration of the Acting Principal Deputy Medical Director for the
Department’s Bureau of Medical Services, a post-specific clearance is also called a Class 2 medical
clearance. Decl. of Larry G. Padget, Jr., Ex. 4 of Def.’s Mot. [Dkt. # 20-4] (“Padget Decl.”) at 1.
The Padget Declaration, while not incorporated in the complaint, is available for the Court’s
review in its analysis of plaintiff’s standing to bring Count II. See Haase v. Sessions, 835 F.2d
902, 906 (D.C. Cir. 1987).

2      “ECF” followed by a number refers to the page number appearing at the top of the PDF
docketed on the Court’s Electronic Case Files system.

                                                 2
        To gain promotion to the senior ranks of the Foreign Service, the Department requires

FSOs to serve in foreign posts considered “hardship posts” that have been assigned a certain

“hardship differential.” Am. Compl. ¶ 8. Department regulations define such a post as one in

which “environmental conditions differ substantially from environmental conditions in the

continental United States and warrant additional compensation as a recruitment and retention

incentive.” Id. ¶ 9, quoting 3 FAM 3261.1. 3 A hardship differential is the percentage difference

between an FSO’s basic rate of compensation and the increased rate the officer would earn while

serving in a hardship post. Id. ¶ 10.

        The American Foreign Service Association (“AFSA”), “the exclusive bargaining agent for

Foreign Services employees, including FSOs,” is involved in the process of establishing the

required differentials. Am. Compl. ¶ 12. FSOs are responsible for meeting the hardship post

requirement largely on their own. Id. ¶ 11. At the time of the complaint, the hardship post

differential requirement was 15%. Id. ¶ 73. The Department’s foreign posts with hardship

differentials between 0% to 15% have a higher vacancy rate than posts with 20% or higher

differentials. Id. ¶ 71.

        Plaintiff alleges that in 2010, she requested assignment to three 15% or higher differential

posts, but “DOS chose not to assign [her] to any hardship posts in 2010, or at any other time when

[she] sought assignment to a post with a sufficiently high hardship differential for promotion to

the SFS.” Am. Compl. ¶¶ 21–22.




3      “FAM” refers to the Department of State’s Foreign Affairs Manual. U.S. DEP’T OF STATE,
FOREIGN AFFAIRS MANUAL AND HANDBOOK, https://fam.state.gov/default.aspx (last visited Mar.
17, 2020). See Zivotofsky ex rel. Zivotofsky v. Kerry, 135 S.Ct. 2076, 2082 (2015).


                                                 3
        In 2014, plaintiff was selected to serve as Minister Counselor of the Public Affairs Section

of Embassy Tokyo, a position that was two grade ranks higher than her personal rank. 4 Am.

Compl. ¶¶ 23–24, 26. Plaintiff received positive performance reviews for her work there, as well

as a meritorious service pay increase for being one of the Department’s “best assets.” Id. ¶¶ 29–

31. In her 2015 performance evaluation, plaintiff’s evaluator stated: “I agree that [plaintiff]

belongs in the ranks of our most senior leaders and should be promoted to Senior Foreign

Service.” 5 Id. ¶ 29.

        In early 2015, plaintiff asked her Career Development Officer (“CDO”) to begin the

process that would enable her to be considered for promotion to the SFS. Am. Compl. ¶ 32. She

was informed “that she met all requirements for promotional eligibility to the SFS other than the

then-current hardship post requirement, and only that requirement, for promotion to the SFS.” Id.

¶ 33.

        On October 9, 2015, plaintiff wrote to the Director General of the Foreign Service

“requesting a waiver of the hardship post requirement for entry to the SFS.” Am. Compl. ¶ 39.

The Director General responded by telling plaintiff that she was required to fulfill the hardship

post requirement. Id. ¶ 40.




4       According to the Padget Declaration, “[a]ll employees . . . holding a Class 2 Post-specific
clearance require post approval from MED/MC prior to being assigned to any overseas post,”
Padget Decl. ¶ 7, and the “only post submitted [by plaintiff] for approval was Tokyo. MED has
no record of any other post approval requests for Ms. Carrington, and [MED’s] records do not
indicate she sought approval for any 15% hardship post.” Id. ¶ 10.

5      In plaintiff’s 2016 review, the deputy chief of mission stated that “[i]f she were in the senior
ranks, where she clearly belongs, [her] achievements would warrant merit pay. I urge the panels
to promote her without delay.” Am. Compl. ¶ 30.


                                                  4
       On January 15, 2016, plaintiff filed a formal Equal Employment Opportunity (“EEO”)

complaint based on the denial of the waiver request. See Am. Compl. ¶ 105. She then worked

with her CDO to request another waiver of the hardship post requirement from the Director

General. Id. ¶ 42. As part of that process, on January 29, 2016, plaintiff emailed Dr. Ernest Davis,

the Director of Medical Clearances, seeking information that would aid her CDO in completing

the request. See Dr. Davis Email at ECF 97. 6 Among other questions, plaintiff asked for “more

details about why [plaintiff’s] family is not likely to be cleared to serve at a 15% differential

post . . . .” Id. On February 2, 2016, Dr. Davis responded: “Ms. Carrington and two of her eligible

family members have medical issues that severely limit assignment of the employee and her

Eligible Family Members to posts without sophisticated, near CONUS [Continental United States]

equivalent, medical resources. The required medical resources would not be available in hardship

posts.” Dr. Davis Email at ECF 96.

       In March 2016, plaintiff requested a waiver of the hardship post requirement as a form of

reasonable accommodation from the Disability and Reasonable Accommodation Division in the

State Department’s Office of Accessibility and Accommodation (“DRAD”). Am. Compl. ¶ 46.

On April 1, 2016, that office responded that “a [hardship post requirement] waiver is not

considered a reasonable accommodation, therefore, while we can certainly communicate with you,

as needed, but there is no need for you to provide us with a [] Request for Disability

[accommodation form].” Id. ¶ 47. On April 12, 2016, plaintiff’s CDO confirmed that the

Department’s policy is that “waivers [of the hardship post requirement for promotion to the SFS]




6      While Dr. Davis’s opinion is quoted in the amended complaint and, therefore, is
incorporated into it, see n.1 supra, plaintiff’s email to Dr. Davis is not specifically referenced in
the complaint, and it is used solely in connection to the Court’s standing analysis in Count II.


                                                 5
are not reasonable accommodations so do not follow under DRAD’s authority to weigh in on.” Id.

¶ 48 (correction in original).

        Around this time, plaintiff submitted her second waiver request to the Director General.

Am. Compl. ¶¶ 43–44. 7 In it, plaintiff stated that:

            •   she had “not been able to meet the hardship requirement due to a medical
                condition that requires access to advanced medical care by a number of
                different medical specialists[;]”

            •   two of her children have special medical needs;

            •   she bid on several 15% differential posts in 2010 and her “understanding
                was that the StateMED clearance process did not come into play as [she]
                was not offered any of those overseas positions[;]” and

            •   by 2014, there had been “a degree of improvement in [her] health and in
                [her] children’s conditions [that] allowed [them] to return overseas with
                Tokyo-specific medical clearances based on the availability of high quality
                services [t]here.”

Id. ¶ 43.

        On April 22, 2016, the Director General responded to plaintiff’s second request. Am.

Compl. ¶ 45. He noted that “[w]hen reviewing waiver requests . . . consideration is given to when

the employee’s medical clearance became limited and whether the employee made reasonable

efforts to seek assignment at a qualifying differential post before the employee’s medical clearance

became limited, as well as afterward.” Ex. 5 to Buatte Decl. [Dkt. # 20-2] (“DG Response”) at

ECF 118. 8 He added, “[a]t this point, I have determined that you have not met the standard

required to ‘open your window,’” and he directed plaintiff to “please request that MED evaluate




7      Plaintiff does not specify exactly when she submitted the request, so it is not clear if it was
submitted before or after she received the information regarding DRAD.

8      The amended complaint quotes the DG Response, see Am. Compl. ¶ 45, so the response is
incorporated by reference into the complaint.
                                                  6
possible posts for a post-specific clearance.” Id. Finally, he advised the plaintiff: “[i]f MED is

not able to clear you for any 15 percent differential posts at that point, you may wish to request

consideration of a waiver.” Id.; Am. Compl. ¶ 45.

       On May 3, 2016, plaintiff submitted a request to the Department’s EEO specialist in the

Office of Civil Rights: “that StateMed be directed to assist me beginning now to identify hardship

posts at the 15% differential rate that would provide the ‘near CONUS equivalent’ medical

facilities that my condition requires, as well as adequate support services for my spouse and my

daughter given their disabilities.” Am. Compl. ¶ 49. She also asked that if a 15% post could not

be identified, that she be granted a waiver because “the DG’s assumption appears to be that such

postings in fact exist when StateMed and others have advised me that is not the case.” Id. Plaintiff

did not receive a response to this submission. Id. at 50.

II.    Procedural Background
       On April 13, 2018, plaintiff filed the initial complaint in this matter. Compl. [Dkt. # 1].

On December 14, 2018, plaintiff filed the amended complaint, Am. Compl., and on March 12,

2019, defendant filed a motion to dismiss or in the alternative for summary judgment. Def.’s Mot.;

Def.’s Mem. Plaintiff then filed an opposition [Dkt. # 22] (“Pl.’s Opp.”), and defendant replied.

Def.’s Reply [Dkt. # 25].

                                   STANDARD OF REVIEW

I.     Subject Matter Jurisdiction

       Under Rule 12(b)(1), the plaintiff bears the burden of establishing jurisdiction by a

preponderance of the evidence. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992); Shekoyan

v. Sibley Int’l Corp., 217 F. Supp. 2d 59, 63 (D.D.C. 2002). Federal courts are courts of limited

jurisdiction and the law presumes that “a cause lies outside this limited jurisdiction[.]” Kokkonen

v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); see also Gen. Motors Corp. v. EPA,

                                                 7
363 F.3d 442, 448 (D.C. Cir. 2004) (“As a court of limited jurisdiction, we begin, and end, with

an examination of our jurisdiction.”). “[B]ecause subject-matter jurisdiction is ‘an Art[icle] III as

well as a statutory requirement . . . no action of the parties can confer subject-matter jurisdiction

upon a federal court.’” Akinseye v. District of Columbia, 339 F.3d 970, 971 (D.C. Cir. 2003),

quoting Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982).

          When considering a motion to dismiss for lack of jurisdiction, unlike when deciding a

motion to dismiss under Rule 12(b)(6), the court “is not limited to the allegations of the complaint.”

Hohri v. United States, 782 F.2d 227, 241 (D.C. Cir. 1986), vacated on other grounds, 482 U.S.

64 (1987). Rather, “a court may consider such materials outside the pleadings as it deems

appropriate to resolve the question [of] whether it has jurisdiction to hear the case.” Scolaro v.

D.C. Bd. of Elections & Ethics, 104 F. Supp. 2d 18, 22 (D.D.C. 2000), citing Herbert v. Nat’l

Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992); see also Jerome Stevens Pharms., Inc. v. FDA,

402 F.3d 1249, 1253 (D.C. Cir. 2005).

II.       Failure to State a Claim

      “To survive a [Rule 12(b)(6)] motion to dismiss, a complaint must contain sufficient factual

matter, accepted as true, ‘to state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In Iqbal,

the Supreme Court reiterated the two principles underlying its decision in Twombly: “First, the

tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable

to legal conclusions.” Iqbal, 556 U.S. at 678. And “[s]econd, only a complaint that states a

plausible claim for relief survives a motion to dismiss.” Id. at 679, citing Twombly, 550 U.S.

at 556.




                                                   8
       A claim is facially plausible when the pleaded factual content “allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at

678. “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than

a sheer possibility that a defendant has acted unlawfully.” Id. A pleading must offer more than

“labels and conclusions” or a “formulaic recitation of the elements of a cause of action[,]” id.,

quoting Twombly, 550 U.S. at 555, and “[t]hreadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, do not suffice.” Id.

       In evaluating a motion to dismiss under Rule 12(b)(6), a court must “treat the complaint’s

factual allegations as true and must grant plaintiff ‘the benefit of all inferences that can be derived

from the facts alleged.’” Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000)

(internal citation omitted), quoting Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979);

see also Am. Nat’l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011), quoting Thomas v.

Principi, 394 F.3d 970, 972 (D.C. Cir. 2005). Therefore, when considering a motion to dismiss, a

court must construe a complaint liberally in the plaintiff’s favor. Kowal v. MCI Commc’ns Corp.,

16 F.3d 1271, 1276 (D.C. Cir. 1994). Nevertheless, the court need not accept inferences drawn by

the plaintiff if those inferences are unsupported by facts alleged in the complaint, nor must the

court accept plaintiff’s legal conclusions. Id.; see also Browning v. Clinton, 292 F.3d 235, 242

(D.C. Cir. 2002). In ruling upon a motion to dismiss for failure to state a claim, a court may

ordinarily consider only “the facts alleged in the complaint, documents attached as exhibits or

incorporated by reference in the complaint, and matters about which the Court may take judicial

notice.” Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191, 196 (D.D.C. 2002), citing EEOC v. St.

Francis Xavier Parochial Sch., 117 F.3d 621, 624–25 (D.C. Cir. 1997).




                                                  9
                                           ANALYSIS

        Plaintiff asserts three claims under the Rehabilitation Act in the amended complaint. In

Count I, she alleges that the Department violated the Act by deeming her and other disabled FSOs

to be ineligible for promotion to the SFS without consideration of reasonable accommodations.

Am. Compl. ¶ 121. In Count II, plaintiff alleges that the Department’s “inflexible” hardship post

requirement has a disparate impact on disabled FSOs because it disproportionately delays or

excludes them from being promoted to the SFS. Id. ¶ 137. Finally, in Count III, plaintiff alleges

that the Department intentionally implemented its hardship post requirement to exclude or delay

her promotion, and the promotion of other disabled FSOs, to the SFS. Id. ¶¶ 148–50. Defendant

has moved to dismiss all three counts for failure to state a claim under Federal Rule of Civil

Procedure 12(b)(6). See generally Def.’s Mem. In addition, defendant argues that Count II should

be dismissed because plaintiff lacks standing to bring the disparate impact claim. Id. at 17.

Defendant’s motion to dismiss Count One will be granted and Counts Two and Three will be

dismissed without prejudice.

   I.      Count I will be dismissed because plaintiff has not plausibly alleged that she was
           denied a reasonable accommodation.

        Count I alleges that the Department violated the Rehabilitation Act when it determined that

plaintiff was ineligible for promotion without considering a reasonable accommodation, and it is

brought on behalf of a putative class of disabled FSOs as well. 9 Am. Compl. ¶ 121. Defendant

moves to dismiss the count for failure to state a claim on the ground that plaintiff has failed to

plead that her request for a reasonable accommodation was “denied.” Def.’s Mem. at 10–13.




9      Defendant correctly points out that plaintiff does not state what reasonable accommodation
she was allegedly denied. Def.’s Mem. at 9–10. However, the Court proceeds, as defendant did,
under the assumption she is referring to her request for a waiver of the hardship post requirement.
                                                10
       The Rehabilitation Act requires that an agency must make “reasonable accommodations to

the known physical or mental limitations of an otherwise qualified individual with a disability who

is an applicant or employee, unless [the agency] can demonstrate that the accommodation would

impose an undue hardship. . . .” 42 U.S.C. § 12112(b)(5)(A); 29 C.F.R. § 1630.9(a); see also Barth

v. Gelb, 2 F.3d 1180, 1183 (D.C. Cir. 1993) (“[The Act’s] basic tenet is that the Government must

take reasonable affirmative steps to accommodate the [disabled], except where undue hardship

would result.”).

       A plaintiff asserting a failure to accommodate claim must plausibly allege facts to establish

four elements: “(i) she was disabled within the meaning of the Rehabilitation Act; (ii) her

employer had notice of her disability; (iii) she was able to perform the essential functions of her

job with or without reasonable accommodation; and (iv) her employer denied her request for a

reasonable accommodation of that disability.” Solomon v. Vilsack, 763 F.3d 1, 9 (D.C. Cir. 2014)

(internal citations omitted); Doak v. Johnson, 798 F.3d 1096, 1105 (D.C. Cir. 2015). “An

underlying assumption of any reasonable accommodation claim is that the plaintiff-employee has

requested an accommodation which the defendant-employer has denied.” Flemmings v. Howard

Univ., 198 F.3d 857, 861 (D.C. Cir. 1999).

       Here, the fourth element is missing because plaintiff has failed to allege that a request was

denied. Assuming that a waiver of the hardship post requirement is a reasonable accommodation, 10

plaintiff did not complete the steps required to obtain a waiver. In the Director General’s response

to plaintiff’s second waiver request, he told her that she had “not met the standard required to ‘open




10      The complaint alleges that the Department has taken a position that a hardship post waiver
is not a reasonable accommodation, but the Court need to reach that issue in this case because
plaintiff’s request has not yet been denied. See Am. Compl. ¶¶ 47, 48.


                                                 11
[the] window’” to be considered for promotion to the SFS and directed her to “request that MED

evaluate possible posts for a post-specific clearance” when she bid on her next post. DG Response

at ECF 118. He said that if she could not receive a post-specific clearance, she could then “request

consideration of a waiver.” Id.; Am. Compl. ¶ 45. In other words, the Director General advised

plaintiff that she did not yet meet the criteria for requesting a waiver, but told her what to do to

qualify:     seek post-specific clearance.   This does not constitute a denial of a reasonable

accommodation request; indeed, the Director General left open the possibility that he would

consider a request for a waiver if it was needed in the future.

       Furthermore, plaintiff does not adduce any facts suggesting that she followed the Director

General’s directions. She does not assert that she bid on another post or asked MED to evaluate

possible options. Nor does she allege that she sought post-specific clearance or that she ever

reapplied for a waiver after being denied such a clearance. Plaintiff notes that she provided those

considering her January 15, 2016 EEO complaint with additional demands for relief, including a

request for a MED evaluation for post-specific clearance, but simply adding information or

possible remedies to her employment action did not accomplish any of the steps she was told were

necessary.

       Because plaintiff has failed to plead sufficient facts to plausibly allege that her request for

accommodation was denied, Count I will be dismissed for failure to state a claim. 11




11     Defendant also seeks to dismiss Count I on the ground that plaintiff’s request was
unreasonable as a matter of law because it sought an exception to the Department’s “procedural
precepts” regarding promotion. Def.’s Mem. at 10, 15. But because the Court will dismiss Count I
based on defendant’s first argument, it does not need to reach that issue.
                                                 12
    II.      Count II will be dismissed because plaintiff has failed to state a claim that the
             Department’s hardship post requirement has a disparate impact on disabled
             FSOs.

          In Count II, plaintiff alleges that she has been subjected to a policy that has a negative and

disproportionate impact on disabled officers in the Foreign Service. Defendant moves to dismiss

this disparate impact claim on two grounds. First, defendant contends that plaintiff lacks standing

to bring the claim and, therefore, it should be dismissed for lack of subject matter jurisdiction.

Def.’s Mem. at 17. Second, defendant argues that even if plaintiff has standing, the claim should

be dismissed because it fails to state a claim for disparate impact. Id. at 18. While the Court finds

that plaintiff has standing to bring the claim, it will dismiss Count II because plaintiff fails to plead

facts giving rise to an inference that the Department’s hardship post policy has a disproportionately

adverse effect on disabled FSOs.

    A. Plaintiff has standing to bring her disparate impact claim.

          “To state a case or controversy under Article III, a plaintiff must establish standing.” Ariz.

Christian Sch. Tuition Org. v. Winn, 563 U.S. 125, 133 (2011); see also Lujan v. Defs. of Wildlife,

504 U.S. 555, 560 (1992). Because “standing is a necessary predicate to any exercise of [federal]

jurisdiction . . . if it is lacking, then the dispute is not a proper case or controversy,” and the court

does not have subject matter jurisdiction to decide the case. Dominguez v. UAL Corp., 666 F.3d

1359, 1361 (D.C. Cir. 2012) (internal citation and quotation marks omitted).

          To determine constitutional standing, the Court looks to the face of the complaint. Haase,

835 F.2d at 908. To comply with the Article III standing requirements, a plaintiff must show that:

“(1) [she] has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or

imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action

of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be



                                                   13
redressed by a favorable decision.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S.

167, 180–81 (2000). “The party invoking federal jurisdiction bears the burden of establishing

standing,” Lujan, 504 U.S. at 561, and when reviewing a standing claim, the Court must be “careful

not to decide the questions on the merits for or against the plaintiff, and must therefore assume that

on the merits the plaintiff[] would be successful in [her] claims.” In re Navy Chaplaincy, 534 F.3d

756, 760 (D.C. Cir. 2008), quoting City of Waukesha v. EPA, 320 F.3d 228, 235 (D.C. Cir. 2003).

Defendant argues that plaintiff lacks standing because she has failed to plead facts to support step

two of the standing analysis: the causal link between her claimed injury and the challenged action

by the Department. Def.’s Mem. at 16.

       Plaintiff has alleged facts showing that her failure to gain promotion to the SFS is “fairly

traceable” to the Department’s hardship post requirement. The complaint alleges that plaintiff’s

CDO, who is charged with helping FSOs gain promotion to the SFS, advised plaintiff that she had

satisfied all of the requirements to be promoted other than the obligation to serve in a hardship

post. Am. Compl. ¶ 33. The accolades plaintiff received in her reviews, including her supervisors’

statements that plaintiff belonged in the Senior Foreign Service support an inference that she was

otherwise eligible for promotion.       Am. Compl. ¶¶ 29–31.         Furthermore, plaintiff alleges

specifically that she was unable to meet the hardship post requirement because of her medical

condition and the Department’s lack of flexibility in waiving the requirement. She quotes Dr.

Davis’s opinion that due to her medical condition, she would be unable to serve in a hardship post

because “[t]he required medical resources would not be available” in such a post. Am. Compl. ¶

41; Dr. Davis Email at ECF 96.




                                                 14
       These facts are sufficient to plausibly allege that plaintiff’s failure to gain promotion to the

SFS is fairly traceable to the Department’s hardship post requirement and that plaintiff has

standing to bring Count 2.

   B. Plaintiff fails to state a claim for disparate impact.

       “[A] disparate-impact claim challenges practices that have a ‘disproportionately adverse

effect on [protected groups],’” that are “otherwise unjustified by a legitimate rationale.” Tex. Dep’t

of Hous. & Cmty. Affairs v. Inclusive Cmtys. Project, Inc., 135 S.Ct. 2507, 2513 (2015), quoting

Ricci v. DeStefano, 557 U.S. 557, 577 (2009). 12 “[T]o sustain a disparate impact claim, a ‘plaintiff

must generally demonstrate with statistical evidence that [an employer’s] practice or policy has an

adverse effect on the protected group.’” Jianqing Wu v. Special Counsel, No. 14-7159, 2015 WL

10761295, at *1 (D.C. Cir. Dec. 22, 2015), quoting Greater New Orleans Fair Hous. Action Ctr.

v. U.S. Dep’t of Hous. & Urban Dev., 639 F.3d 1078, 1985–86 (D.C. Cir. 2011).

       Here, plaintiff alleges that the Department’s hardship post requirement has a

disproportionately adverse effect on disabled FSOs by delaying or preventing their promotions to

the senior ranks of the Foreign Service. Am. Compl. ¶ 137. Defendant contends that plaintiff has

failed to make out a cognizable claim for disparate impact because she does not allege that there

is an “observed statistical disparity” between promotion rates of disabled FSOs and non-disabled

FSOs. Def.’s Mem. at 18. The Court agrees.




12      Although the Supreme Court has not directly addressed the issue of whether a plaintiff may
seek relief for a claim based on a disparate impact theory brought under the Rehabilitation Act, it
has held that disparate impact is available under the American with Disabilities Act of 1990, see
Raytheon Co. v. Hernandez, 540 U.S. 44, 53 (2003), and the Rehabilitation Act “directs courts to
employ the standards of the Americans with Disabilities Act.” Solomon v. Vilsack, 763 F.3d 1, 5
(D.C. Cir. 2014).


                                                 15
           The amended complaint does not include a single statistic or other factual information

regarding the effect of the hardship post requirement on the promotion rates of disabled FSOs.

Although plaintiff provides some statistics on the vacancy rates of hardship posts, see Am. Compl.

¶ 71, that information sheds no light on how those spots are filled generally or by disabled FSOs

specifically. As set forth in the complaint, plaintiff’s claim appears to be based entirely on her

own promotion experience, coupled with a conclusory allegation that, “[u]pon information and

belief,” the hardship post requirement disproportionately excludes all disabled FSOs from

promotion. Id. ¶ 65. This does not satisfy plaintiff’s obligation to allege at least some factual

information to support a plausible inference that the Department’s neutral hardship post

requirement has a disproporate adverse effect on disabled FSOs. See Greater New Orleans Fair

Hous. Action Ctr., 639 F.3d at 1985–86. For that reason, Claim II will be dismissed, but without

prejudice.

    III.      Count III will be dismissed because plaintiff has failed to plausibly allege that the
              Department intentionally discriminated against her and other disabled FSOs by
              implementing its hardship post requirement.

           While Count II alleged that the hardship post requirement, while neutral on its face, violates

the laws protecting disabled individuals in the workplace because it disproportionately impedes

their promotion, Count III alleges that it was deliberately designed to have this effect, and is illegal

for this reason. Defendant has also moved to dismiss this disparate treatment count on the grounds

that plaintiff “has failed to plead any facts that could support the inference that the adoption of this

requirement in 2005 . . . was motivated by intentional discrimination towards disabled




                                                    16
employees. . . .” Def.’s Reply at 10–11. 13 Plaintiff asserts that the Department “adopted an

inflexible hardship post policy intentionally to exclude FSOs with disabilities from promotion to

the Senior Foreign Service.” Pl.’s Opp. at 11. But defendant points out that plaintiff failed to

plead any facts that would support an inference that the Department intended to exclude disabled

FSOs from the Senior Foreign Service by adopting the hardship post requirement, or that plaintiff

herself was the victim of such an intentionally discriminatory policy. Def.’s Reply at 10–11.

       To state a claim for intentional discrimination – often referred to as a “disparate treatment”

claim – a plaintiff must allege that she (1) had a disability, (2) was qualified for the position with

or without reasonable accommodation, and (3) suffered an adverse action because of her disability.

Hodges v. District of Columbia, 959 F. Supp. 2d 148, 154 (D.D.C. 2013), citing Duncan v. Wash.



13       Count Three is poorly drafted and vague, which is why defendant states, “[a]s a threshold
matter,” in its motion to dismiss: “[t]o the extent that Count III simply reiterates [plaintiff’s] claim
for an alleged failure to accommodate, it should be dismissed for reasons already addressed above
with respect to Count I . . . .” Def.’s Mem. at 20–21. One can read the claim to suggest, though,
that it was the hardship post requirement that caused plaintiff to lose advancement opportunities,
and its implementation resulted in discrimination against her as a person with a disability because
people in that class were deemed ineligible for hardship posts without consideration of reasonable
accommodations. That is different than alleging discrimination on the specific occasion when the
agency allegedly denied a request for a waiver.
         Defendant’s motion contends that even this sort of disparate treatment allegation would
fail: the count appears to be based, as is Count Two, on the mere existence of a facially neutral
policy. Def.’s Mem. at 21. Defendant argues, pursuant to McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973), that in a discrimination claim – i.e., a “you treated me differently” claim –
plaintiff has to establish that defendant’s identification of a legitimate, non-discriminatory policy
as the reason for her non-advancement was pretextual, and that defendant’s real motivation was to
exclude people with disabilities. Id. But that is the summary judgment standard, not the pleading
standard at this stage.
         The motion to dismiss can also be read to be arguing that the claim fails because plaintiff
has not alleged that her employer treated her less favorably than other because of her protected
class, but does not come out and say that very clearly.
         However, plaintiff opposed the motion to dismiss and clarified that her disparate treatment
claim was meant to allege that the Department adopted the “inflexible” hardship post policy
intentionally to exclude disabled individuals from promotion. Pl.’s Opp. at 11. Therefore, it is
this claim that the Court will address in this opinion.


                                                  17
Metro. Area Transit Auth., 240 F.3d 1110, 1114 (D.C. Cir. 2001) (en banc); accord Badwal v. Bd.

of Trs. of Univ. of D.C., 139 F. Supp. 3d 295, 308 (D.D.C. 2015); Perez v. D.C. Dep’t of

Employment Servs., 305 F. Supp. 3d 51, 57 (D.D.C. 2018). 14 In other words, plaintiff must plead

that her employer intentionally discriminated against her because of her disability, resulting in an

adverse employment action.

       Here, the complaint advances the conclusion that plaintiff and and other disabled FSOs

suffered adverse employment actions – the denial of promotions to the SFS – because of their

disabilities due to the Department’s adoption of the “inflexible” hardship post policy. Am. Compl.

¶ 150; Pl.’s Opp. at 11. But the complaint lacks the necessary factual allegations that make this

conclusion plausible.

       Plaintiff specifically alleges that the hardship post requirement was adopted by the

Department after negotiations with the Foreign Service Employees’ union, AFSA, Am. Compl.

¶ 12, but does not allege that the Department expressed any discriminatory animus during that

process, or that any potential discriminatory effects on disabled FSOs were deliberately

overlooked. Instead, what plaintiff alleges is that there was a concern that there were not enough

hardship posts available to satisfy the demand of all FSOs rising through the ranks who would

seek promotion. See id. ¶ 72. Plaintiff alleges that the Department’s “shifting explanations” for

its hardship post requirement do not justify the policy, which “screens out or tends to screen out

FSOs with disabilities from promotion to the SFS.” Id. ¶ 77. But, as previously noted, there are




14     To the extent some of these cases discuss disparate treatment claims under the Americans
with Disabilities Act (“ADA”), the analysis nonetheless applies because “[t]he Rehabilitation Act,
which prohibits disability-based discrimination in federal employment, is to be interpreted
coterminously with the ADA.” Dave v. Lanier, 681 F. Supp. 2d 68, 73 n.4 (D.D.C. 2010), citing
Adams v. Rice, 531 F.3d 936, 943 (D.C. Cir. 2008); Breen v. Dep’t of Transp., 282 F.3d 839, 841
(D.C. Cir. 2002).
                                                18
no statistics set forth to lend support to that claimed effect, and there are no other facts alleged to

support the claim that the policy was intentionally adopted to impede disabled FSOs from

advancing through the ranks. These summary allegations, standing alone, are insufficient to state

a claim of intentional discrimination.

       Moreover, plaintiff alleges that she failed to gain promotion to the SFS in October 2015,

because she had not served in a 15% differential post. See Am. Compl. ¶¶ 39–40. But both parties

acknowledge that the hardship post requirement applies equally to all FSOs, Am. Compl. ¶ 8;

Def.’s Reply at 10, and plaintiff has not alleged any facts that raise an inference that her failure to

gain promotion at that time was motived by discriminatory bias.

       Because plaintiff has failed to state facts to plausibly allege that the Department

intentionally adopted its hardship post requirement to discriminate against disabled FSOs or that

application of the requirement to her own bid for promotion was the result of intentional

discrimination, plaintiff has failed to state a claim for disparate treatment. Therefore, Count III

will also be dismissed, but without prejudice.

                                          CONCLUSION

       For the foregoing reasons, Count I is dismissed with prejudice and Counts II and III are

dismissed without prejudice. A separate order will issue.




                                               AMY BERMAN JACKSON
                                               United States District Judge

DATE: March 20, 2020




                                                  19
