                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 16-1393
                                      ____________

                                   SAMAN KHOURY,
                                            Appellant
                                         v.

                        SECRETARY UNITED STATES ARMY
                                 ____________

                     On Appeal from the United States District Court
                               for the District of New Jersey
                                (D.N.J. No. 2-12-cv-06695)
                      District Judge: Honorable Susan D. Wigenton
                                       ____________

                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                  October 26, 2016

             Before: FISHER, VANASKIE and KRAUSE, Circuit Judges.

                            (Opinion Filed: January 27, 2017)
                                     ____________

                                        OPINION*
                                      ____________




FISHER, Circuit Judge.

       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
       Saman Khoury appeals the District Court’s grant of summary judgment for the

Secretary of the United States Army, rejecting Khoury’s reasonable accommodation

claim brought under the Rehabilitation Act of 1973.1 We will affirm.

                                            I.

        Saman Khoury is a former employee of the U.S. Army Research Development

and Engineering Command at Picatinny Arsenal, New Jersey. In 2004, Khoury filed an

Equal Employment Opportunity (“EEO”) complaint against the Army for disability

discrimination and failure to reasonably accommodate his injuries stemming from three

unrelated motor vehicle accidents. In response, the parties executed a negotiated

settlement agreement (“NSA”) providing that, “subject to approval by higher

headquarters,” management would provide first-class air accommodations for work-

related trips requiring air travel.2

       In March 2006, Khoury requested travel by first-class air for an upcoming

assignment in Rock Island, Illinois. On March 26, 2006, the Army approved air travel by

coach. Pursuant to the NSA, Khoury submitted medical documentation recommending

that he be able to “get up and walk around after sitting for approximately one hour.”3




       1
         29 U.S.C. § 701 et seq.
       2
         App. 193a-196a.
       3
         App. 145a.
                                            2
Additionally, Khoury consulted the EEO office for assistance in acquiring first-class

flight accommodations pursuant to the NSA.4

       Following discussions with EEO personnel, the Army approved travel

arrangements by train with a sleeper car upgrade. Khoury then booked his own train

ticket to Illinois and a hotel room for an overnight detour in Washington, D.C. Khoury

departed for his assignment on Friday, April 21, arriving in Washington, D.C. later that

morning, where he saw a performance at Ford’s Theatre and toured a museum. The next

day, Khoury departed for Illinois in a family bedroom car. On April 24, while still in

Illinois, Khoury visited the emergency room and was diagnosed with a back sprain.

Khoury then booked a first-class airplane ticket without the Army’s permission for his

return trip to New Jersey.

       On October 23, 2012, Khoury filed a complaint in the United States District Court

for the District of New Jersey under the Rehabilitation Act. In his amended complaint,

Khoury alleged failure to grant a reasonable accommodation (Count I), disability

discrimination (Count II), retaliation (Count III), and hostile environment (Count IV).

Khoury did not pursue the hostile environment claim in the District Court. The Army

moved for summary judgment under Federal Rule of Civil Procedure 56, and the District

Court granted the motion. This appeal followed.

                                            II.


       4
           App. 509a, 534a.
                                             3
       The District Court had jurisdiction pursuant to 28 U.S.C. § 1331. We have

jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review over summary

judgment determinations, applying the same legal standard as the District Court.5

Summary judgment is appropriate where the movant shows “that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.”6

All facts are viewed “in the light most favorable to the non-moving party.”7

                                            III.

       On appeal, Khoury limits his challenge to the District Court’s grant of summary

judgment on his reasonable accommodation claim. Khoury argues that the District Court

erred in holding that he failed to exhaust his administrative remedies, that he was not

disabled under the Rehabilitation Act, and that the Army granted him a reasonable

accommodation. Because each is an independent ground for affirming the District

Court’s decision, we only address Khoury’s reasonable accommodation argument.

       The Rehabilitation Act forbids federal employers “from discriminating against

persons with disabilities in matters of hiring, placement, or advancement.”8 To establish a

prima facie case, Khoury must show “(1) he is a disabled person within the meaning of

the [Rehabilitation Act]; (2) he is otherwise qualified to perform the essential functions of


       5
         Mengine v. Runyon, 114 F.3d 415, 418 (3d Cir. 1997).
       6
         Fed. R. Civ. P. 56(a).
       7
         D.E. v. Cent. Dauphin Sch. Dist., 765 F.3d 260, 268 (3d Cir. 2014) (internal
quotation marks omitted).
       8
         Shiring v. Runyon, 90 F.3d 827, 830-31 (3d Cir. 1996).
                                             4
the job, with or without reasonable accommodations by the employer; and (3) he has

suffered an otherwise adverse employment decision as a result of discrimination.”9

Khoury asserts that the Army’s failure to provide the reasonable accommodation of first-

class air travel constitutes an “adverse employment decision” under the third prong. We

reject this argument.

       Although federal employers are required to provide reasonable accommodations

for disabled employees under the Rehabilitation Act, “the employer providing the

accommodation has the ultimate discretion to choose between effective

accommodations.”10 As the District Court correctly noted, and as Khoury provided in his

response to the Army’s Statement of Undisputed Material Facts, the purpose of the

upgraded travel accommodation was to enable him to “stretch his extremities” and “get

up and walk around after sitting for approximately one hour or so.”11 Khoury fails to

point to “specific facts” that render the accommodation provided—train travel with a

family bedroom sleeper-car upgrade—ineffective to achieve that purpose.



       9
         Williams v. Phila. Hous. Auth. Police Dep’t, 380 F.3d 751, 761 (3d Cir. 2004).
Though the framework set forth in Williams pertains to a claim brought under the
Americans with Disabilities Act, the “substantive standards for determining liability are
the same” under both the Americans with Disabilities Act and the Rehabilitation Act.
Antol v. Perry, 82 F.3d 1291, 1299 (3d Cir. 1996) (internal quotation marks omitted).
       10
          29 C.F.R. app. § 1630.9; see also Aka v. Washington Hosp. Ctr., 156 F.3d 1284,
1305 (D.C. Cir. 1998) (en banc) (“[A]n employer is not required to provide an employee
with the accommodation he requests or prefers, the employer need only provide some
reasonable accommodation.” (internal quotation marks omitted)).
       11
          App. 15a-16a, 528a-529a.
                                             5
       Instead, Khoury asserts that the Army cannot prove that the accommodation he

requested—first-class air travel—poses an undue burden on operations. Yet the Army

need not do so. Because we agree with the District Court that the Army provided a

reasonable accommodation via train travel with the sleeper-car upgrade, we find that

Khoury failed to establish a prima facie case that would trigger the need for the

affirmative defense of undue burden.

       We have stated that “both parties have a duty to assist in the search for appropriate

reasonable accommodation.”12 Indeed, “[w]hen the interactive process works well, it

furthers the purposes of the Rehabilitation Act.”13 Khoury concedes that the facts do not

support a claim that the Army failed to engage in the interactive process. We agree.

Rather, it is Khoury who seemingly adopted the intractable position that first-class air

travel was the only satisfactory accommodation available to him. Clinging to an optimal

or preferred accommodation is contrary to the intent of the Rehabilitation Act. We

therefore agree with the District Court that the Army provided Khoury with a reasonable

accommodation.

                                            IV.

       For the above reasons, we will affirm the District Court’s grant of summary

judgment in the Army’s favor.



       12
            Mengine, 114 F.3d at 420.
       13
            Id.
                                             6
