203 F.3d 843 (D.C. Cir. 2000)
Thu McGill, Appelleev.George MuNoz, President and Chief Executive Officer, Overseas Private Investment Corporation, Appellant
No. 97-7123
United States Court of AppealsFOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 15, 1999Decided 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:


1
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.


2
* 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.


3
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).


4
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 accommodationclaim.  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

5
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)).


6
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).


7
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


8
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'sHonor 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.


9
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.


10
* 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).


11
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 thedepartment 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


12
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

13
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


14
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 generally 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 requiring written documentation.


15
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:


16
When the employee appears to be using sick leave im-properly (for example, chronic use of brief periods of sickleave), 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 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.


17
Id. (emphasis added).  It is this aspect of the policy that  OPIC applied to McGill.


18
In the summer of 1994, McGill's office manager, Connie  Downs, noted that McGillhad missed work five times in a  one-month period.  The absences conformed to a clear pattern--each time McGill received a poor performance appraisal, 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.


19
As Downs' memorandum fully complied with the written  sick leave policy set forth above,9 there is no evidence to 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 differently 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 employee 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).


20
In short, McGill offered no evidence--either direct or circumstantial--from which a reasonable jury could have concluded that OPIC imposed the medical documentation requirement because of her disability.

III

21
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").



Notes:


1
 For purposes of this opinion, we will attribute to McGill arguments made either by her or by amicus.


2
 The Supreme Court has described the McDonnell Douglas  framework as follows:
First, the plaintiff has the burden of proving by the preponderance 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 legitimate, 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 defendant were not its true reasons, but were a pretext for discrimination.
...
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 Title VII, to claims of disability discrimination under the Rehabilitation 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.


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").


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 disparate treatment because she failed to show she was similarly situated  to co-worker to whom she compared herself).


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)).


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 ...  physically sick," J.A. at 410, in context it is clear that Downs was distinguishing 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.").


