Petition for Writ of Certiorari — John S. Morter, Petitioner v. Pete Hegseth, Secretary of Defense

TABLE OF APPENDICES

Appendix A:

Opinion of the U.S. Court of Appeals for the District

of Columbia Circuit

(July 22, 2025)................................................................. la

Appendix B:

Memorandum Opinion and Order of the U.S. District

Court for the District of Columbia

(March 15, 2024)........................................................... 19a

Appendix C:

Order of the U.S. Court of Appeals for the District of

Columbia Circuit Denying Rehearing and Rehearing

En Banc

(September 18, 2025)................................................... 43a

Appendix D:

Mandate of the U.S. Court of Appeals for the District

of Columbia Circuit

(September 30, 2025)................................................... 44a

Appendix E:

Statutory and Regulatory Provisions Involved

(Various)......................................................................... 45a

Appendix F:

Department of Defense Instruction 5210.91

(Excerpts)

(2012, incorporating changes through 2020)..........48a

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 24-5056

September Term, 2024

FILED ON: JULY 22, 2025

John S. Morter,

Appellant

v.

Pete Hegseth, Secretary, Department of Defense,

Appellee

Appeal from the United States District

Court for the District of Columbia

(No. l:23-cv-00343)

Before: MILLETT, KATSAS, and WALKER, Circuit

Judges.

JUDGMENT

This appeal was considered on the record from the

United States District Court for the District of

Columbia and on the briefs and oral argument of the

parties. The Court has afforded the issues full

consideration and has determined that they do not

warrant a published opinion. See FED. R. APP. P. 36;

D.C. CIR. R. 36(d). For the reasons stated below, it is:

la

ORDERED and ADJUDGED that the order of the

district court issued on February 26, 2024, entering

judgment in favor of appellee, be AFFIRMED.

John Morter filed suit against the Secretary of

Defense

alleging

discrimination

under

the

Rehabilitation Act of 1973. Mr. Morter, who worked

for an intelligence unit within the Defense

Department, was reassigned after he failed multiple

polygraph exams designed to identify security

vulnerabilities. Mr. Morter argues that the

reassignment failed to accommodate his anxiety and

its effect on his exam results, in violation of the

Rehabilitation Act. We affirm the district court’s

judgment dismissing Mr. Morter’s failure to

accommodate and disparate treatment claims.

I

A

The Rehabilitation Act of 1973, 29 U.S.C. §§ 701 et

seq., prohibits federal agencies from engaging in

employment

discrimination

against

disabled

individuals. 29 U.S.C. § 791(b); see Adams v. Rice, 531

F.3d 936, 942-943 (D.C. Cir. 2008). The Act applies to

the federal government the same standards enforced

under the Americans with Disabilities Act (“ADA”),

42 U.S.C.§§ 12101 et seq. See 29 U.S.C. § 791(f); see

also 29 C.F.R. § 1614.203(b); Solomon v. Vilsack, 763

F.3d 1, 5 (D.C. Cir. 2014).

The ADA, and so also the Rehabilitation Act, bars

discrimination against a “qualified individual on the

basis of disability [.]” 42 U.S.C. § 12112(a). A qualified

individual is one who is able to carry out “the

essential functions” of an employment position “with

2a

or without reasonable accommodation.” Id. §

12111(8). The meaning of “discriminate” includes the

failure to “mak[e] reasonable accommodations to the

known physical or mental limitations of an otherwise

qualified [employee] with a disability,” unless the

employer “demonstrate[s] that the accommodation

would impose an undue hardship [.]” Id. §

12112(b)(5)(A); see also 29 C.F.R. § 1630.9(a); Rice,

531 F.3d at 943.

The Rehabilitation Act requires individuals to

exhaust administrative remedies with the employing

agency prior to filing suit in court. 29 U.S.C. §

794a(a)(l); see Doak v. Johnson, 798 F.3d 1096, 1099

(D.C. Cir. 2015).

B

Mr. Morter worked as an Intelligence Analyst with

the Defense Intelligence Agency (“DIA”) for 15 years.

The DIA provides military intelligence for the

government and is involved in planning covert

intelligence operations. During his employment with

the DIA, Mr. Morter was detailed to the United States

Special Operations Command (“SOCOM”) in Tampa,

Florida. Because of the highly secure matters and

operations handled by SOCOM, Mr. Morter held Top

Secret and Sensitive Compartmented Information

clearances. Mr. Morter’s wife worked for the DIA as

an intelligence officer until, in January 2011, she

failed a polygraph exam and was fired.

In March 2011, soon after his wife lost her job, the

DIA had Mr. Morter take a polygraph exam, which he

failed to pass on the topics of the mishandling of

classified information and unauthorized foreign

contacts. Over the next four years, Mr. Morter

3a

completed four more polygraph exams, all of which

resulted in unfavorable outcomes on the same topics.

After failing his third polygraph exam in January

2012, the DIA referred Mr. Morter for an

investigation.

During

interviews

with

DIA

investigators, Mr. Morter explained that he had

historically been uncomfortable with the agency’s

classification guidelines and that he had often

attended official functions for his wife’s work that

foreign nationals also attended. Mr. Morter also

admitted to having anxiety while undergoing

polygraph exams. He said he had “nightmares about

being interrogated,” he “worr[ied] that [he would] not

be able to remain calm enough[,]” and his wife’s

termination had compounded his anxiety. J.A. 176.

Mr. Morter also admitted to researching the

polygraph exam and coming across ways to “beat the

polygraph,” but he added that he did not “take any

credence in them[.]” J.A. 177. The relevant guidance

issued for the Intelligence Community prohibits

research into polygraph exams, especially into

countermeasures. Soon thereafter, Mr. Morter failed

his fourth polygraph exam.

In October 2013, Mr. Morter’s doctor, Dr. Heather

Magee, diagnosed him with adjustment disorder with

anxiety. About a month and a half later, a DIA doctor,

Dr. K.M. Soo-Tho, confirmed Dr. Magee’s diagnosis

and documented Morter’s anxiety about polygraph

exams. Dr. Soo-Tho concluded, however, that Mr.

Morter’s disorder should not preclude him from

successfully taking polygraph exams. He added that,

because Mr. Morter had investigated ways to subvert

the polygraph exam, he was no longer a suitable

candidate for polygraph examination.

4a

In February 2014, the DIA’s Chief of the Defense

Intelligence Central Adjudication Facility granted

Mr. Morter a favorable security clearance

determination conditioned upon him continuing to

seek mental health care and complying with

treatment recommendations. Around that same time,

SOCOM leadership lost confidence in Mr. Morter and

barred him from its employ and premises.

After that, a DIA Insider Threat Mitigation Panel

reviewed Mr. Morter’s case and recommended that he

be permanently reassigned from Tampa, Florida to

Washington, D.C., where he could work in a less

sensitive position. The DIA informed Mr. Morter of

his reassignment in May 2014.

In June 2014, Mr. Morter appealed his

reassignment. Two months later, the DIA provided

Mr. Morter a fifth polygraph exam in an effort to

resolve his appeal. Before the fifth polygraph exam,

Mr. Morter received from Dr. Michael Rothburd a

diagnostic impression of anxiety disorder and posttraumatic stress disorder. When asked by agents

whether he had “any medical issues that [he felt]

would inhibit [his] ability to successfully complete

[the] * * * polygraph examination[,]” he answered,

“Yes,” and referenced his anxiety and post-traumatic

stress disorder diagnoses. J.A. 245.

Mr. Morter’s fifth polygraph exam again resulted

in an unfavorable outcome on the same classifiedinformation and foreign-contact topics. After the

exam, Mr. Morter promptly underwent a

psychological consultation with DIA psychologist Dr.

Jill Tucillo, who reported that Mr. Morter displayed

anxiety symptoms and that psychotherapy seemed

“insufficient to address anxiety of this proportion.”

5a

J.A. 249-250. Two weeks later, Mr. Morter was

hospitalized for a panic attack.

The DIA eventually denied Mr. Morter’s appeal

and maintained his reassignment having concluded

that his medical diagnosis “would [not] support a

medical

deferment

from

the

[polygraph]

examination.” J.A. 332-333. Mr. Morter chose not to

accept the reassignment and instead retired from

federal service.

C

After filing unsuccessful complaints with the

DIA’s equal employment opportunity office and then

the Equal Employment Opportunity Commission, Mr.

Morter timely filed suit in the United States District

Court for the District of Columbia. His complaint

alleges that the Secretary of Defense’s reassignment

of him: (i) failed to accommodate his disability, (ii)

constituted disparate treatment on the basis of

disability, and (iii) had a disparate impact. J.A. 4-6.

The district court granted summary judgment for the

Secretary.1

Mr. Morter appealed. A panel of this court has

already affirmed the grant of summary judgment on

Mr. Morter’s disparate impact claim. Morter v.

Hegseth, No. 24-5056, Per Curiam Order, ECF No.

2078965 (D.C. Cir. Oct. 8, 2024). That leaves the

failure to accommodate and disparate treatment

claims at issue here.

1 Because the relevant conduct here was taken by the DIA, which

is under the authority of the Secretary of Defense, we discuss the

conduct of the DIA, rather than the Secretary of Defense, in this

decision.

6a

II

This court reviews a grant of summary judgment

de novo, viewing the evidence in the light most

favorable to the non-movant. See Galvin v. Eli Lilly &

Co., 488 F.3d 1026, 1031 (D.C. Cir. 2007); Woodruff v.

Peters, 482 F.3d 521, 526 (D.C. Cir. 2007).

A

1

On appeal, Mr. Morter first challenges the district

court’s determination that he failed to exhaust his

failure to accommodate claim. Exhaustion of remedies

under the Rehabilitation Act is not jurisdictional,

unless there was a “wholesale failure to file an

administrative complaint or to obtain any

administrative decision at all.” Doak, 798 F.3d at

1103-1104; Adams, 531 F.3d at 952-953 (“A

complainant need only file a signed statement with

the agency that is ‘sufficiently precise to identify the

aggrieved individual and the agency and to describe

generally the action(s) or practice(s) that form the

basis of the complaint[.]’”) (quoting 29 C.F.R. §

1614.106(c)).

In this case, Mr. Morter submitted informal and

formal complaints with the DIA’s equal employment

opportunity office, which considered and denied his

claims. Mr. Morter also sought review by the Equal

Employment Opportunity Commission, which

similarly denied his claim but issued a right-to-sue

notice. Because Mr. Morter filed administrative

complaints and obtained agency rulings, any question

about the sufficiency of his exhaustion is not

jurisdictional. See also Koch v. White, 744 F.3d 162,

164—165 (D.C. Cir. 2014) (failure to participate

7a

properly, both procedurally and substantively, in

administrative review of a Rehabilitation Act claim

can be “excused” by the district court, and thus is nonjurisdictional).2 We therefore assume without

deciding that Mr. Morter properly exhausted his

accommodation claim, and conclude that his claim

nonetheless fails on the merits.

2

For Mr. Morter’s failure to accommodate claim to

survive summary judgment, he had to “come forward

with sufficient evidence to allow a reasonable jury to

conclude” that (i) he “was disabled within the

meaning of the Rehabilitation Act”; (ii) the DIA had

notice of his disability; (iii) he “was able to perform

the essential functions of [his] job with or without

reasonable accommodation”; and (iv) the DIA denied

his request for a reasonable accommodation of his

disability. Solomon, 763 F.3d at 9 (internal citations

omitted).

The DIA does not dispute that Mr. Morter’s

anxiety was a qualifying disability, Gov’t Br. 27-59,

so we assume that the first prong was met. And the

parties agree that the DIA was on notice of his anxiety

at least by the time he met with Dr. Soo-Tho. Morter

2 Other circuits are in accord. See Boos v. Runyon, 201 F.3d 178,

182 (2d Cir. 2000); Wilson v. MVM, Inc., 475 F.3d 166, 175 (3d

Cir. 2007); Stewart v. lancu, 912 F.3d 693, 700 (4th Cir. 2019);

Sanchez v. Henderson, 167 F.3d 537, at *2 (5th Cir. 1998); Teal

v. Potter, 559 F.3d 687, 691 (7th Cir. 2009); Ballard v. Rubin, 284

F.3d 957, 964 n.6 (8th Cir. 2002); Leong u. Potter, 347 F.3d 1117,

1122 (9th Cir. 2003); Hickey v. Brennan, 969 F.3d 1113, 1118

(10th Cir. 2020); Gaillard v. Shinseki, 349 F. App’x 391, 392

(11th Cir. 2009) (per curiam).

8a

Opening Br. 12—15; Gov’t Br. 9-12. So the second

prong was met.

Mr. Morter’s claim, though, fails at the third prong

because he has not come forward with evidence that

would allow a reasonable jury to find that he was able

to perform the essential functions of his job with or

without accommodation. Mr. Morter was an

Intelligence Analyst with the DIA and was located at

SOCOM, where he regularly handled Top Secret and

Sensitive Compartmented Information in support of

SOCOM’s highly sensitive military operations. J.A.

92, 100, 204—205. Because of that position, Mr. Morter

was subject to polygraph examination and insider

threat evaluation at any time. See J.A. 56-61, 62-70

(“[Polygraph] examinations * * * maybe administered

at periodic or aperiodic intervals in support of

reinvestigations or continuous evaluation.”), 1 Id­

lib.

In addition, as a matter of settled DIA policy, the

agency could reassess employment and job

responsibilities if there were adverse outcomes on

polygraph examinations, and could consider

relocating an employee to a less sensitive position.

See J.A. 115 (“DIA employees who are unable to

successfully complete the [polygraph] examination * *

* may be relocated to DIA Headquarters, or if already

assigned to DIA Headquarters, they may be realigned

to a less sensitive position commensurate with their

grade.”).

Here, the DIA reasonably concluded that Mr.

Morter’s unfavorable outcomes on five separate

polygraph exam queries into the mishandling of

classified information and unauthorized foreign

contacts necessitated reassignment. To the extent

9a

that Mr. Morter’s anxiety caused these adverse exam

results, his disability rendered him a security

vulnerability in a position of such sensitivity that it

left no room for error. That is shown by SOCOM

leadership’s “lost confidence in Mr. Morter’s ability to

continue serving” there and decision not to retain his

services any longer. J.A. 77, 212; see also J.A. 206. So

“[w]hile the polygraph and reassignment were DIA

actions, the ultimate decision to bar [Mr. Morter]

came from senior SOCOM leadership, not from

DIA[.]” J.A. 206. That decision by SOCOM that Mr.

Morter could no longer safely be allowed to perform

the sensitive and often-classified work of his position

left him unable to perform the essential functions of

his job. Even assuming his anxiety caused the adverse

polygraph results, the job necessity of being able to

pass a polygraph examination designed to mitigate

security threats left Mr. Morter unqualified for his

position.

In short, because of (i) Mr. Morter’s exam results,

(ii) the sensitive position he held in a special

operations command where Top Secret and other

protected intelligence information was routinely

handled, and (iii) SOCOM’s refusal to keep him in its

employ, the DIA has shown that Mr. Morter was no

longer qualified for his DIA position at SOCOM.

3

Mr. Morter responds that his reassignment

violates a Defense Department policy providing that

“[n]o unfavorable administrative action (to include

access, employment, assignment, and detail

determinations) shall be taken solely on the basis of

either a refusal to undergo a [polygraph] examination

10a

or an unresolved [polygraph] examination, except as

provided in sections 6 and 7 of Enclosure 4.” J.A. 360

(Enclosure 3 | 2(g)). That provision is of no help to Mr.

Morter.

To start, Mr. Morter did not have “an” unresolved

polygraph exam; he had five of them in a row, with

each consistently highlighting the same two areas of

vulnerability:

the

mishandling of classified

information and unauthorized foreign contacts. He

offers no evidence that the policy applies to such a

long and consistent pattern of failures on the same

topics. In any event, Mr. Morter’s reassignment falls

within the exception at Enclosure 4 paragraph 7. That

exception provides that when an employee is unable

to resolve all relevant questions on a polygraph exam,

the Defense Department component shall afford the

individual an opportunity for additional examination.

J.A. 371 (Enclosure 4 7(a)). Upon further failure, the

component may initiate an investigation and come to

a final determination. J.A. 371 (Enclosure 4 7(b));

J.A. 371 (Enclosure 4 7(d)). The parties agree that

these steps were followed. Morter Opening Br. 7-19;

Gov’t Br. 5-18, 54-56.

Mr. Morter, though, points to the provision that

says the component may, in addition to the

investigation, “temporarily suspend an individual’s

access to controlled information and deny the

individual assignment or detail that is contingent on

such access.” J.A. 371 (Enclosure 4 U 7(c)). Mr. Morter

argues that his reassignment determination was

permanent, not temporary.

True enough, Mr. Morter’s reassignment was

permanent. But the exception provides only that

temporary suspension may be used “[additionally”

11a

while an investigation is conducted. J. A. 371

(Enclosure 4 TJ 7(c)). And investigations eventually

end in final determinations. Once that final decision

is made—as it was for Mr. Morter—the procedure

directs only that the individual “shall be advised in

writing of the determination, that the determination

may be appealed to the Head of the relevant DoD

Component, and that his or her final determination is

conclusive,” not temporary. J.A. 371 (Enclosure 4

7(d)) (emphasis added). That is exactly what

happened here.

For those reasons, Mr. Morter has failed to show

that a reasonable jury could find him to be a qualified

individual with a disability for his DIA work with

SOCOM, and so the district court properly granted

summary judgment on his failure to accommodate

claim.

B

The district court also properly granted summary

judgment on Mr. Morter’s disparate treatment claim.

Mr. Morter has identified nothing in the record that

casts doubt on the sincerity of the DIA’s—and thus

the Defense Secretary’s—reasonable belief that Mr.

Morter posed a security vulnerability that needed to

be mitigated.

In Rehabilitation Act cases, this court applies a

three-part burden-shifting framework. See Solomon,

763 F.3d at 14; see also All v. Regan, 111 F.4th 1264,

1268-1269 (D.C. Cir. 2024); see generally McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).

First, the plaintiff must prove a prima facie case of

discrimination. Second, the burden of production then

shifts to the defendant to articulate some legitimate,

12a

non-discriminatory reason for the employee’s

rejection. Third, should the defendant carry this

burden, the plaintiff must prove that the legitimate

reason offered by the defendant was actually a pretext

for discrimination. See Texas Dep’t of Cmty. Affairs v.

Burdine, 450 U.S. 248, 252-253 (1981) (citation

omitted); George v. Leavitt, 407 F.3d 405, 411 (D.C.

Cir. 2005).

We assume without deciding that Mr. Morter

made out a prima facie case because the DIA came

forth with evidence of a legitimate non-discriminatory

reason for its reassignment decision: to wit, the

necessity of mitigating the security vulnerability Mr.

Morter posed for having failed to resolve five different

polygraph exams because of questions about the

mishandling

of

classified

information

and

unauthorized contact with foreign persons. District

Court Op. 13—15.

At this stage, then, the only question is whether

“the employee produced sufficient evidence for a

reasonable jury to find that the employer’s asserted

non-discriminatory reason” for the adverse action

“was not the actual reason and that the employer

intentionally discriminated against the employee [.]”

Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494

(D.C. Cir. 2008) (citing St. Mary’s Honor Ctr. v. Hicks,

509 U.S. 502, 507-508 (1993)).

The DIA came forward with sufficient evidence for

a jury to find that it had a reasonable, sincere, and

non-discriminatory reason for reassigning Mr.

Morter. Mr. Morter was working for a military

command that oversees the military’s special

operations forces, which underscores the heightened

military and national security concerns associated

13a

with his position. Mr. Morter’s subsequent inability to

pass five separate polygraph exams over concerns

about the mishandling of classified information and

unauthorized contacts with foreign persons could

reasonably be found to pose a serious security threat

that had to be mitigated. That, in fact, is why SOCOM

refused to allow Mr. Morter to remain part of its

operations. Given that, a reasonable jury could credit

the DIA’s explanation and find no disparate

treatment.

That brings us to the question of whether Mr.

Morter came forward with sufficient evidence to

create a jury question as to whether disability

discrimination instead was the real reason for his

reassignment. Mr. Morter offers five arguments that

do not, either individually or collectively, create a

reasonably disputed question of fact concerning the

reason for the DIA’s action.

First, Mr. Morter says that we are asking the

wrong question. In his view, his prima facie case for

discrimination is so strong that the district court

should have assumed that the DIA’s proffered

rationale is pretextual. Morter Opening Br. 40-43.

That argument fails twice over.

For one, Mr. Morter raised this contention for the

first time on appeal. His unexplained failure to

present it to the district court in the first instance

forfeits the argument. See Feld v. Fireman’s Fund Ins.

Co., 909 F.3d 1186, 1197 (D.C. Cir. 2018).

For another, Mr. Morter’s assumption that

summary judgment can be looked at through a one­

sided lens is wrong. The purpose of summary

judgment is to test whether any disputed question of

material fact remains for a jury to resolve. See Feld,

14a

909 F.3d at 1194 (quoting Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 250 (1986)). With both Mr. Morter’s

evidence and the DIA’s in the record, it would make

no sense to ask at summary judgment a question the

jury will never decide: could the jury—without

considering the defense’s evidence at all—reasonably

rule for the plaintiff? So, contrary to Mr. Morter’s

framing, he does not seek a presumption of

discrimination. He seeks a truncation of the summary

judgment inquiry altogether.

Second, Mr. Morter argues that Stephen Norton,

the DIA’s Director of Security and the final

decisionmaker as to Mr. Morter’s reassignment, failed

to sufficiently consider certain medical evidence, such

as Dr. Rothburd’s diagnostic impression of anxiety

disorder and post-traumatic stress disorder. That

argument does not work.

Mr. Morter, however, offers no evidence that he

ever provided Dr. Rothburd’s letter to the DIA prior

to his reassignment. Anyhow, Mr. Norton expressly

referenced the disabilities that Mr. Morter “claimed *

* * [to] ha[ve] been diagnosed with,” including anxiety

disorder and post-traumatic stress disorder, J.A. 333,

and concluded that security concerns required Mr.

Morter’s reassignment. Mr. Norton pointed to Dr.

Soo-Tho’s expert judgment that the symptoms of

Morter’s adjustment disorders—taking them as

given—are

“probably

easily

attenuated

by

[polygraph] examination procedures and should not

preclude an individual’s ability to successfully]

complete [polygraph] examination!].” J.A. 191, 333.

To be sure, even if Mr. Norton had seen Dr.

Rothburd’s diagnostic “[i]mpression,” it does not say

that Mr. Morter must be excused from polygraph

15a

exams. J.A. 181; see also J.A. 333 (Mr. Norton’s

conclusion that the agency did not receive or

anticipate receiving “medical diagnoses] that would

support a medical deferment from the [polygraph]

examination!]”). And above all, Mr. Norton

emphasized the fact that nothing in any doctor’s

report solves the basic problem that, even if Mr.

Morter qualified for a medical deferment, the acutely

sensitive SOCOM program in which he worked “d[id]

not have the ability to mitigate the loss of the

[polygraph] tool (either by SUBJECT’S inability to

successfully complete the examination process, or

through a medical deferment from the [polygraph]

examination process) [.]” J.A. 333

Third, Mr. Morter points to evidence, including

from Dr. Tucillo, to show that the DIA knew his

inability to pass the polygraph exams was a result of

his anxiety and not because he was a security risk.

Morter Opening Br. 48-52. In Mr. Morter’s view, this

evidence means “a jury could find that Morter’s

extreme anxiety during the polygraph exams

stemmed not from any actual security concern.”

Morter Opening Br. 48 (emphasis added).

That argument does not work either. There is no

inconsistency between Mr. Morter’s anxiety-induced

inability to take polygraph exams and the DIA’s

conclusion that, without polygraph screening and

with his history of exam failures, Mr. Morter posed a

security vulnerability that could not be tolerated at a

command of such acute military sensitivity. As the

DIA explained, even if “the inability to pass the

examination does not—on its own—suggest [Mr.

Morter is] a risk to national security,” his enduring

inability to meet “a basic security requirement for all

16a

DIA employeesQ presents a security vulnerability

that must be mitigated.” J.A. 109.

In any case, the question at hand is only whether

the DIA sincerely and reasonably believed that Mr.

Morter had to be reassigned from his Tampa position

because his five-time failure of polygraph exams

created a security risk that had to be mitigated. And

nothing in Dr. Tucillo’s report speaks to that question.

Fourth, Mr. Morter argues that the DIA showed a

lack of urgency by taking several years to administer

five separate exams and by waiting until October

2013 to revoke his security clearance, only to

reinstate it in February 2014. But that actually

demonstrates the care and concern with which the

DIA investigated Mr. Morter’s case and its efforts to

understand and address the nature and impact of his

anxiety on the polygraph failures. The DIA followed

the agency’s own measured process; responded swiftly

to each of Mr. Morter’s exam failures; afforded Mr.

Morter multiple attempts to pass the exam, spaced far

enough apart for him to seek mental health services

in the interim, see J.A. 165, 198; and then took more

serious steps when SOCOM refused to work with Mr.

Morter. Said another way, the DIA’s effort to obtain

all relevant information and provide a 15-year

employee ample opportunity to succeed does not

provide a reasonable basis for a jury to find pretext.

Lastly, Mr. Morter argues that the DIA’s failure to

follow two Department of Defense instructions shows

pretext. To start, Mr. Morter points to Enclosure 3

2(g),

which provides that no unfavorable

administrative action shall be taken solely on the

basis of an unresolved polygraph examination. That

argument fails because, as noted earlier, Mr. Morter’s

17a

case falls into an exception to the Rule that allows

reassignment after a second polygraph exam and an

investigation that supports that decision. See J.A. 371

(Enclosure 4 7).

Next, Mr. Morter points to Enclosure 4 paragraph

2(h), which states that “[t]he Heads of DoD

Components * * * shall establish written procedures

to * * * [e]xempt or postpone examinations when

individuals are considered medically, psychologically,

or emotionally unfit to undergo an examination.” J.A.

367. The DIA did just that, and its patience, in fact, is

the very basis on which Mr. Morter argues above that

the DIA’s lack of urgency shows pretext. Mr. Morter

cannot have it both ways. Anyhow, Enclosure 4

paragraph 2(h) merely requires component heads to

develop policies allowing for exemptions. Mr. Morter

does not argue that the DIA failed to develop such

policies. So nothing here points to pretext. For the foregoing reasons, we affirm the judgment

of the district court.

Pursuant to D.C. Circuit Rule 36, this disposition

will not be published. The Clerk is directed to

withhold issuance of the mandate until seven days

after resolution of any timely petition for rehearing or

rehearing en banc. See FED. R. APP. P. 41(b); D.C.

CIR. R. 41.

Per Curiam

FOR THE COURT:

Clifton B. Cislak, Clerk

18a

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

JOHN S. MORTER,

Plaintiff,

v.

LLOYD J. AUSTIN HI,

Defendant.

Civil Action No. 23-343 (JEB)

MEMORANDUM OPINION

Pro se Plaintiff John S. Morter — a former

employee of the Defense Intelligence Agency —has

sued Secretary of Defense Lloyd J. Austin for

disability discrimination. The Agency reassigned him

from his post in Tampa, Florida, to its headquarters

here in Washington after he failed successive, routine

polygraph examinations, despite his protestations

that those results were caused by his anxiety and

post-traumatic stress disorder. He alleges here that

the Agency violated federal anti-discrimination law

by failing to accommodate his ailments, employing a

policy that disparately penalizes employees with his

condition, and subjecting him personally to

discriminatory treatment. The Secretary now moves

to dismiss, or, alternatively, for summary judgment,

and Morter cross-moves for summary judgment. The

Court, finding no triable issue on any count, will grant

summary judgment in the Secretary's favor.

19a

I. Background

A. Factual Background

Because the Court is focusing on Defendant's

Motion for Summary Judgment, it will construe the

facts in the light most favorable to Plaintiff. See

Talavera v. Shah, 638 F.3d 303, 308 (D.C. Cir. 2011).

For over a dozen years, Morter was an Intelligence

Analyst for the DIA at the United States Special

Operations Command (SOCOM) facility in Tampa.

See ECF No. 5-2 (Def. SMF), K 1; ECF No. 7-21

(Supervisor Comments), | 1. As a condition of his

employment there, he was required to hold a Top­

Secret security clearance and handle Sensitive

Compartmented Information. See Def. SMF, , KK 2-3;

ECF No. 7-1 (Pl. Opp.) at 2. As with all DIA employees

entrusted with such information, Morter was subject

to aperiodic polygraph examinations to determine

whether he posed an unacceptable security risk under

the Agency's Insider Threat Program. See Def. SMF,

K 4; ECF No. 5-5 (ITP Policy), K 4.1.3; ECF No. 5-15

(Interrogatory of Steven McIntosh) at 5-6. These

exams — referred to as Counterintelligence Scope

Polygraphs (CSP) — measured his physiological

responses under five lines of questioning, each of

which could implicate a risk to national security: (1)

sabotage; (2) espionage; (3) terrorism; (4) mishandling

classified information; and (5) unauthorized foreign

contact. See Def. SMF, K 5; ECF No. 5-6 (Polygraph

Policy Guidance) at 1. The examiner then issued one

of the following scores: “No Deception Indicated,” “No

Significant Response,” “No Opinion,” “Significant

Response,” or “Deception Indicated.” ECF No. 10-1

(DOD Instruction 5210.91) at 20. The last three

appear to be failing scores.

20a

Morter had, by all accounts, successfully

maintained his Top-Secret clearance while working in

military and civilian roles for over 30 years. See

Supervisor Comments, 1. His woes began, however,

on March 23, 2011, when he failed a CSP. See ECF

No. 7-6 (3/23/11 CSP) at 1. Although his ratings on

questions regarding sabotage, espionage, and

terrorism were satisfactory, he received ratings of “No

Opinion” as to his handling of classified information

and foreign contacts. Id. at 1-2. Despite efforts to

repeat and rephrase the questions, the “No Opinion”

rating stuck. Id. at 2. Notably, in a post-test

interview, Morter “expressed concerns about issues

peripheral to the security questions coupled with

increasing general anxiety.” Id. He agreed to return

for further testing two days later, but again scored

“No Opinion” on the same two topics. See PL Opp. at

2; Def. SMF, , H 6-7.

On January 31, 2012, Plaintiff appeared for a third

CSP on all security topics. Once again, he successfully

completed the test as to sabotage, espionage, and

terrorism, but not as to handling classified

information and foreign contacts. See ECF No. 7-9

(1/31/12 CSP) at 1. This time, he received a

“Significant Response” rating on those topics. Id. at 2.

Five months later, on June 26, 2012, Morter was

ordered to meet with a Special Investigator at DIA

Headquarters, who interviewed him on his inability

to pass the CSP. See ECF No. 7-10 (DIA Report).

Morter relayed to the investigator that he “became

very anxious” when asked questions about

mishandling classified information (but denied

having ever done so intentionally) and affirmed that

he “had made a conscious effort to report all unofficial

21a

foreign contacts.” Id. at 2. He also signed a voluntary

sworn written statement, in which he reported

experiencing “nightmares about being interrogated”

and feared that he was unable “to remain calm

enough” to avoid a false positive. See id. at 7-9.

Compounding these fears, he explained, was the

experience of his wife (also a former DIA contract

employee at SOCOM), who had failed a polygraph

exam just two months prior to his first failed CSP and

had her access to classified information revoked after

“be[ing] judged by this process as a liar.” Id. at 2, 7;

see ECF No. 7-17 (Report on DIA Trip) at 2. Morter

further disclosed that he had “conducted considerable

research on the subject [of polygraph exams] and

talked with dozens of people ... in order to determine

why [he was] having trouble passing.” DIA Report at

7. He underwent a fourth CSP following the

interview, which resulted once more in “No Opinion.”

Pl. Opp. at 3; Def. SMF, H 6-7.

What came next is a matter of some dispute. The

Court does not credit Plaintiffs assertion that his

security clearance was revoked or that he was

banished from SOCOM on October 8, 2013, see Pl.

Opp. at 3, as it is not supported by any citation to the

record. See Local Civ. R. 7(h); see also ECF No. 10

(Def. Reply) at 8 (“Plaintiff did not have his security

clearance revoked.”). Rather, it appears that the

Agency- as part of an investigation into Morter's

repeated CSP foibles still ongoing at that time arranged for him to speak with an Insider Threat

Program Staff Psychologist named Dr. Joe Soo-Tho

“to ascertain whether there were any psychological

conditions which may have impeded [his] ability to

successfully complete CSP examinations” and to

22a

“identify appropriate interventions.” ECF No. 5-8

(DIA Emails) at 2. That interview took place on

November 6, 2013, and a report was issued the

following month. See ECF No. 5-9 (Soo-Tho Report) at

1.

The significance of Dr. Soo-Tho's evaluation to the

present litigation is twofold. First, it considered a

record of medical care showing that Morter was

diagnosed with an anxiety disorder by a psychologist,

Dr. Heather Magee, who evaluated him just a few

weeks prior to the interview. See Soo-Tho Report at 2;

ECF No. 5-19 (Health Record) at 2; ECF No. 5-11

(11/14/13 Magee Ltr.). Morter had disclosed the visit

and diagnosis to his supervisor, Timothy Grimes, for

the first time on November 14, 2013, who forwarded

it to the Chief of the SOCOM Special Security Office,

who in turn sent it to Dr. Soo-Tho. See Pl. Opp. at 4;

Soo-Tho Report at 2. Dr. Soo-Tho concluded in his

report that the symptoms associated with Morter's

condition “are probably easily attenuated by CSP

examination procedures and should not preclude an

individual's ability to successfully] complete” the

exam. See Soo-Tho Report at 3.

Second,

the

report

found

that Morter

“inadvertently revealed that he ha[d] 'done extensive

research on polygraph' examinations,” gave

contradictory answers regarding whether he “had

ever looked into CSP countermeasures,” and offered

implausible responses regarding whether he had fully

disclosed his research to the polygraph examiners. Id.

Overall, Dr. Soo-Tho concluded that, given Morter's

“verbalized intent and demonstrated efforts to

subvert CSP examination, he is unlikely to be a

suitable candidate for further polygraph testing.” Id.

23a

at 4. He further determined that Morter's “lack of

insight, proclivity to externalize blame and lack of

candor probably limits the degree to which he may be

willing and/or able to cooperate with realistic threat

mitigation strategies,” and noted that “Coordination

with DIA Office of Human resources (OHR) will also

likely be necessary,” given SOCOM's “reluctance to

permit [Morter] to remain on their premises without

adequate/satisfactory resolution of’ those issues. Id.

That scalding assessment did not apparently

diminish Morter's standing with the DIA. On January

31, 2014, a senior adjudicator with the DIA Office of

Security Investigations Division concluded that,

despite his CSP results, “there is no current

information provided to cast doubt on [Morter's]

judgment, reliability, or trustworthiness,” especially

given his three decades of experience in the

intelligence business. See EOF No. 7-19 (Security

Review & Evaluation Record) at 1. The adjudicator's

report recommended that he receive counseling for

his anxiety and another CSP no sooner than six

months from his last test. Id. Further, on February 6,

2014, DIA issued Morter an “Advisory Letter”

regarding his continued access to classified

information. See ECF No. 5-12 (Advisory Ltr.). It

clarified that “[t]he decision to seek mental health

care” does not “adversely impact an individual's

ability to obtain or maintain a national security

position,” and in fact “may favorably impact”

eligibility for such a position. Id. at 1. It further stated

that Morter's “decision to seek mental health care and

comply with treatment recommendations” were

“viewed as positive signs that [he] recognized a

problem existed” and was “willing to take steps

24a

towards resolving” it. Id. The Agency determined that

neither his CSP results nor his diagnosis was a

ground to revoke his security clearance. Id.

A DIA Insider Threat Mitigation Panel,

nevertheless, convened on February 10, 2014, to

discuss Morter's situation, and it ultimately

concluded that “as an initial insider threat mitigation

strategy, [he] will be returned to DIA [headquarters

in Washington, D.C.] in order to discontinue the

transference of risk to” SOCOM. See DIA Emails at 7.

In Morter's defense, Grimes penned a memorandum

explaining that his performance at SOCOM had been

“exemplary” and free of “security incidents or issues”

and that his difficulties completing the CSP were at

least partially explained by his anxiety and the

experiences his wife endured. See Supervisor

Comments, 11 4-5. But that objection proved

insufficient. On May 12, 2014, Colonel Shawn Nilius

— a senior official at SOCOM — verbally informed

Morter that he was being reassigned to DIA

headquarters. See ECF No. 7-25 (Letter of

Counseling). Two written letters to that effect

followed on May 21 and 27. See ECF No. 5-14

(Reassignment Action Ltr.); Letter of Counseling. The

latter added that, pending completion of his

reassignment, he would not have access to certain

sensitive facilities at SOCOM. See Letter of

Counseling. Contemporaneous emails show that

SOCOM's deputy commander, Lieutenant General

John Mulholland, had “lost confidence in Mr. Morter's

ability to continue serving” there, and that his

reassignment was deemed consistent with a

“foundational philosoph[y ]” of the DIA Insider Threat

25a

Program against “transferring] risk” to other

organizations. See DIA Emails at 1, 3.

Morter appealed the decision on June 4, 2014,

ultimately to no avail. See ECF No. 5-16 (Notice to

Appeal). Stephen Norton, the DIA Director of Security

who reviewed the appeal, sustained the relocation

decision, which he emphasized in a later

interrogatory “was based solely on security concerns

because of [Morter's] inability to complete multiple

[CSP] examinations.” ECF No. 5-17 (Norton

Interrogatory) at 6-7.

On August 5, 2014, prior to his transfer date,

Morter appeared for a fifth CSP this time armed with

diagnoses of Anxiety Disorder and Post-Traumatic

Stress Disorder. See ECF No. 7-32 (8/5/14 CSP); ECF

No. 7-12 (7/31/14 Diagnosis Ltr.). He nevertheless

scored a “Significant Response.” 8/5/14 CSP at 3. He

was instructed to meet with a DIA psychologist to

manage his “distraught emotional condition” in

response to this latest misfire. See ECF No. 7-33 (Dr.

Jill Tucillo Report) at 1. She concluded that his

condition might require psychotropic medication, and

that he was “not likely to be a suitable candidate for

future CSP examination.” Id. at 2. Two weeks later,

Morter was briefly hospitalized for an acute panic

attack. See Pl. Opp. at 10; ECF No. 7-35 (Hospital

Discharge).

As scheduled, Plaintiff reported to DIA

headquarters on August 24, 2014. Rather than

assume a new position there, however, he invoked

sick leave under the Family Medical Leave Act (on his

doctor's advice) and returned home to Tampa. See PL

Opp. at 10; ECF No. 5-1 (Def. MSJ) at 7 n.3.

B. Procedural Background

26a

Plaintiff filed a formal Equal Employment

Opportunity complaint on July 23, 2014. See ECF No.

7-29 (EEO Complaint). It alleged that DIA

discriminated against him because of his anxiety

disorder when it allegedly revoked his access to

classified information in October 2013 and again

when it reassigned him to DIA headquarters on May

27, 2014. Id. at 1-2. The former claim was dismissed

as untimely and unreviewable. See ECF No. 5-18

(Notice of Partial Acceptance) at 3-4. After exhausting

administrative remedies as to the latter claim, he

filed suit in this Court on February 3, 2023, alleging

a failure to accommodate his disabilities,

discriminatory treatment, and discriminatory impact,

in violation of the Americans with Disabilities Act.

See ECF No. 1 (Compl.). Secretary Austin now moves

to dismiss or, in the alternative, for summary

judgment, and Plaintiff cross-moves for summary

judgment.

II. Legal Standard

As the Court decides this case under the summary­

judgment standard, that is the only one it sets out

here. Under Rule 56(a), summary judgment must be

granted if “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.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986);

Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006).

A fact is “material” if it is capable of affecting the

substantive outcome of the litigation. See Liberty

Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at 895. A

dispute is '“genuine' if the evidence is such that a

reasonable jury could return a verdict for the

nonmoving party.” Liberty Lobby, 477 U.S. at 248; see

27a

also Scott v. Harris, 550 U.S. 372, 380 (2007);

Holcomb, 433 F.3d at 895. “A party asserting that a

fact cannot be or is genuinely disputed must support

the assertion” by “citing to particular parts of

materials in the record” or “showing that the

materials cited do not establish the absence or

presence of a genuine dispute, or that an adverse

party cannot produce admissible evidence to support

the fact.” Fed. R. Civ. P. 56(c)(1).

In considering a motion for summary judgment,

“[t]he evidence of the non-movant is to be believed,

and all justifiable inferences are to be drawn in his

favor.” Liberty Lobby, 477 U.S. at 255; see also Mastro

v. PEPCO, 447 F.3d 843, 850 (D.C. Cir. 2006); Aka v.

Wash. Hosp. Ctr., 156 F.3d 1284, 1288 (D.C. Cir.

1998). The Court must “eschew making credibility

determinations or weighing the evidence.” Czekalski

v. Peters, 475 F.3d 360, 363 (D.C. Cir.

2007). The non-moving party's opposition,

however, must consist of more than mere

unsupported allegations or denials and must be

supported by affidavits, declarations, or other

competent evidence, setting forth specific facts

showing that there is a genuine issue for trial. See

Fed. R. Civ. P. 56(e); Celotex Corp. v. Catrett, 477 U.S.

317,324 (1986). The non-movant, in other words, is

required to provide evidence that would permit a

reasonable jury to find in his favor. See Laningham v.

U.S. Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987).

III. Analysis

As an initial matter, the Court agrees with

Defendant that the ADA does not apply to the federal

government. See Def. MSJ at 1 n.l; Brown v. Paulson,

541 F. Supp. 2d 379,382 n.l (D.D.C. 2008). It shall,

28a

accordingly, construe prose Plaintiffs claims as

arising under the Rehabilitation Act of 1973, which

does. Brown, 541 F. Supp. 2d at 382 n.l. The

applicable legal standards do not differ between the

two statutes. See Alexander v. Wash. Metro. Area

Transit Auth., 826 F.3d 544, 546 (D.C. Cir. 2016).

Defendant seeks summary judgment as to

Morter's failure-to-accommodate claim on various

grounds,

including his failure to exhaust

administrative remedies. See Def. MSJ at 13-17. As

to the disparate-treatment claim, the Secretary

maintains that there was a legitimate, nondiscriminatory reason for Morter's transfer- namely,

security concerns arising from his repeated failure to

complete a routine CSP. Id. at 17-21. Finally, as to his

disparate-impact claim, the Secretary proposes that it

may be dispensed with at this stage for want of

relevant statistical evidence. Id. at 21-24. The Court

addresses these contentions in turn.

A. Failure to Accommodate

The Rehabilitation Act requires federal employers

to “mak[e] reasonable accommodations to the known

physical or mental limitations of an otherwise

qualified individual with a disability.” Minter v. Dist.

of Columbia, 809 F.3d 66, 69 (D.C. Cir. 2015) (quoting

42 U.S.C. § 12112(b)(5)(A) (ADA Provision). Here,

Morter alleges that permitting him to remain in his

duty station at SOCOM, despite his CSP results,

would have been a reasonable accommodation for his

anxiety disorder. See Compl. at 2, 4. The Court agrees

with the government, however, that Morter never

exhausted this claim in EEO proceedings.

Before filing suit under the Rehabilitation Act, an

employee must first exhaust his administrative

29a

remedies. Huang v. Wheeler, 215 F. Supp. 3d 100, 10708 (D.D.C. 2016). “For claims against federal

agencies, exhaustion requires submitting a claim to

the employing agency itself.” Doak v. Johnson, 798

F.3d 1096, 1099 (D.C. Cir. 2015). The employee must

first “initiate contact with” an EEO Counselor “within

45 days of the date of the matter alleged to be

discriminatory,” and then, if that resort proves

unsuccessful, file a formal administrative complaint.

See 29 C.F.R. §§ 1614.105(a)(1), 1614.106.

Here, an explicit charge of failure to accommodate

is absent from Morter's EEO complaint — as is any

factual allegation that could be construed as a request

for accommodation. See EEO Complaint at 1-2.

Further, the Notice of Partial Acceptance — which

details the charges that the DIA chose to investigate

— shows that the Agency understood Morter's

complaint to allege solely “discrimination on the basis

of mental disability (anxiety disorder)” arising from

three incidents: (1) on October 8, 2013, when SOCOM

leadership purportedly informed him that his access

to classified information was being revoked; (2) on

May 12, 2014, when Colonel Nilius informed him that

SOCOM would no longer retain his services; and (3)

on May 27, 2014, when he received a notice of

reassignment to DIA Headquarters. See Notice of

Partial Acceptance at 1. There is no evidence in the

record that Plaintiff ever objected to this narrow

characterization of his claims. Nor does he allege in

his Opposition that he did. Compare Def. MS J at 14

(citing Notice of Partial Acceptance in support of

exhaustion argument), with Pl. Opp. at 10-11

(responding without disputing Notice of Partial

Acceptance or specifying where in EEO complaint a

30a

failure-to-accommodate claim was raised); see also

Bozgoz v. James, 2020 WL 4732085, at *7 (D.D.C.

2020) (“Since the object of the [Notice] is to

summarize the issues before the agency, ... [i]n cases

where the plaintiff did not object, courts have found

that the plaintiff effectively abandoned any claims

that were not listed, and only the events in the Notice

of Acceptance

letter

were

administratively

exhausted.”);

Hartzler v. Mayorkas, 2022 WL

15419995, at *9 (D.D.C. Oct. 27, 2022) (same).

Absent evidence of exhaustion, the Court has little

choice but to grant summary judgment for the

Secretary on this claim without delving into its

merits.

B. Disparate Treatment

Next up is Morter's disparate-treatment claim,

which alleges that in reassigning him to DIA

Headquarters, Defendant discriminated against him

on the basis of his disabilities — i.e., anxiety disorder

and PTSD. Before wading through the arguments and

evidence on this count, a brief review of the applicable

law is in order.

1. Legal Framework

The Supreme Court established the three-part

burden-shifting framework that governs traditional

claims of employment discrimination in McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973).

Under that framework, the plaintiff bears the initial

burden of establishing a primafacie case of

discrimination. In keeping with “the Supreme Court's

emphasis on flexibility” in this area, our Circuit has

adopted a “general version of the prima facie case

requirement: the plaintiff must establish that (1) she

is a member of a protected class; (2) she suffered an

31a

adverse employment action; and (3) the unfavorable

action gives rise to an inference of discrimination.”

Chappell-Johnson v. Powell, 440 F.3d 484,488 (D.C.

Cir. 2006) (cleaned up). After a plaintiff makes that

preliminary showing, '“[t]he burden then must shift

to the employer to articulate some legitimate,

nondiscriminatory reason' for its action. If the

employer succeeds, then the plaintiff must 'be

afforded a fair opportunity to show that [the

employer's] stated reason ...

was in fact pretext'

for unlawful discrimination.” Id, at 487 (quoting

McDonnell Douglas, 411 U.S. at 802, 804).

When, however, “an employee has suffered an

adverse employment action and an employer has

asserted a legitimate, non-discriminatory reason for

the decision, the district court need not — and should

not — decide whether the plaintiff actually made out

a prima facie case under McDonnell Douglas. ” Brady

v. Off. of Sergeant at Arms, 520 F.3d 490, 494 (D.C.

Cir. 2008) (emphasis omitted). The court's task in

such cases is instead to “resolve one central question:

Has the employee produced sufficient evidence for a

reasonable jury to find that the employer's asserted

non-discriminatory reason was not the actual reason

and that the employer intentionally discriminated

against the employee on the basis of a protected

characteristic? Id. The “relevant inquiry” is thus

whether an employee has “produced sufficient

evidence for a reasonable jury to conclude that the

[defendant's] asserted nondiscriminatory reason for

firing h[im] was not the actual reason, and that

instead

the

[defendant]

was

intentionally

discriminating.” Wheeler v. Georgetown Univ. Hosp.,

812 F.3d 1109, 1114 (D.C. Cir. 2016). The foregoing

32a

framework applies to Rehabilitation Act claims as

well. Webster v. United States Dep't of Energy, 443 F.

Supp. 3d 67, 80-81 (D.D.C. 2020).

Two caveats. First, the Brady “shortcut” applies

only if the employer's asserted reason is supported by

an “adequate evidentiary proffer.” Figueroa v.

Pompeo, 923 F.3d 1078, 1087 (D.C. Cir. 2019) (cleaned

up). More specifically, before advancing to the third

step of the McDonnell Douglas analysis, the court

must consider “(1) whether the employer has

'produced evidence that a factfinder may consider at

trial (or a summary judgment proceeding)'; (2)

whether that evidence is sufficient to permit a

reasonable jury 'to find that the employer's action was

motivated by' a non-discriminatory reason; (3)

whether the proffered, non-discriminatory reason is

'facially credible in light of the proffered evidence';

and (4) whether the evidence 'presents a clear and

reasonably specific explanation.”' Kirkland v.

McAleenan, 2019 WL 7067046, at *14 (D.D.C. Dec. 23,

2019) (quoting Figueroa, 923 F.3d at 1087-88). A

conclusory statement that the plaintiff was not

qualified for the position he sought will not suffice. Id.

Second, in assessing whether the employer's

decision was animated by a discriminatory motive,

courts apply a more stringent causal standard for

Rehabilitation Act claims than, for example, for Title

VII claims. Whereas under Title VII “it suffices to

show that the motive to discriminate was one of the

employer's motives, even if the employer also had

other, lawful motives,” Kirkland, 2019 WL 7067046,

at *15 (citing Univ, of Tex. Sw. Med. Ctr. v. Nassar,

570 U.S. 338, 343 (2013) (cleaned up), under the

Rehabilitation Act, “a plaintiff asserting a disparate

33a

treatment claim must show that the alleged

discriminatory conduct was the 'but-for' cause of the

asserted injury.” Id. The Act, distinctively, “bars

discrimination 'solely by reason of the employee's

protected status.” Id. (quoting 29 U.S.C. § 794(a)).

2. Application

Rather than quibble with the elements of

Plaintiffs primafacie case, the Secretary contends

that there was a legitimate, non-discriminatory

reason for his reassignment: “[E]very available

position in SOCOM required Plaintiff to be trusted

with

handling

Top

Secret

and

Sensitive

Compartmented Information - a task that SOCOM

no longer trusted Plaintiff to do - and DIA believed

that it could monitor the risk posed by Plaintiff in

Headquarters more effectively than ifhe worked

elsewhere.” Def. MSJ at 19. That rationale is more

than adequately borne out by the record. There is, for

example, no dispute that Morter failed four CSPs

prior to his reassignment. See Pl. Opp. at 2-3; Def.

SMF, ,r,r 6-7. Nor is there any dispute that, as an

intelligence analyst for DIA, he was required to

complete such exams under the Agency's Insider

Threat Program. See Def. SMF, ,r 4; ITP Policy, sec.

2.1; McIntosh Interrogatory at 5-6.

Multiple

sources

—

including

written

interrogatories by the DIA officials who made the

transfer decision — confirm that these facts and the

attendant risk to national security were the reason

why Morter was reassigned to DIA Headquarters.

See, e.g., Reassignment Action Ltr. (“[Morter's]

inability

to

successfully

complete

the

counterintelligence-scope polygraph examination,

which is a basic security requirement for all DIA

34a

employees, presents a security vulnerability that

must be mitigated..... The DIA [Insider Threat

Program] has determined this vulnerability can be

properly mitigated by an assignment to DIA

Headquarters.”); DIA Emails at 7 (“[A] DIA Insider

Threat Mitigation Panel ... concurred that as an

initial insider threat mitigation strategy, [Morter]

will be returned to DIA HQ in order to discontinue the

transference ofrisk to [SOCOM].”); McIntosh

Interrogatory at 8-9 (“The decision to reassign

Complainant to DIA Headquarters to mitigate the

security vulnerability [was] due to Complainant's

inability to successfully complete the CSP

examination.”); Norton Interrogatory at 7 (“The

decision to relocate Mr. Morter was based solely on

security concerns because of his inability to complete

multiple [CSP] examinations and the need to mitigate

these concerns.”).

This evidence, in short, is sufficient for a

reasonable jury to conclude that the reassignment

decision was motivated by the perceived security risk

associated with Plaintiffs failed polygraphs. See

Figueroa, 923 F.3d at 1087. That rationale is not only

“clear and reasonably specific,” but it is also credible

on its face, in view of Morter's undisputed CSP results

and the applicable DIA policies. Id. at 1087-88; cf. id.

at 89 (statement that “employment decision was

based on the hiring of the 'best qualified' applicant,”

without more, would be too “vague and slippery” to

clear the second step of McDonnell Douglas) (cleaned

up). Far from demonstrating that Plaintiffs mental

disabilities were the sole reason for his reassignment,

the foregoing evidence suggests that it was not a

reason at all.

35a

The only question now is whether Plaintiff has

adduced sufficient evidence for a jury to conclude that

DIA's rationale was pretextual. The Court discerns

three arguments from Plaintiff on this score. First, he

claims that the DIA could not honestly have believed

that he was a threat to national security because he

explained to them that his disabilities were the

reason he flunked his CSPs. See PL Opp. at 13. But

this is plainly not true of his PTSD diagnosis, which

(as Plaintiff admits elsewhere) he provided to “[his]

leadership” for the first time on July 31, 2014 —

months after the transfer decision was made. Id. at 8;

7/31/14 Diagnosis Ltr.; see also Crandall v. Paralyzed

Veterans of Am., 146 F.3d 894, 896-97 (D.C. Cir. 1998)

(to be liable under the Rehabilitation Act, the

employer must have “acted with an awareness of the

disability itself, and not merely an awareness of some

deficiency in the employee's performance that might

be a product of an unknown disability”).

As for Morter's anxiety-disorder diagnosis, the

Secretary has more than adequately proven why the

Agency was not convinced that it fully explained why

he failed his polygraphs. The DIA tasked one of its

staff psychologists, Dr. Soo-Tho, with evaluating

whether “any psychological conditions ... may have

impeded” Morter's ability to successfully complete a

CSP. See DIA Emails at 2. Dr. Soo-Tho interviewed

Morter and reviewed his health records, including his

anxiety-disorder

diagnosis,

but

nevertheless

concluded that the symptoms associated with that

condition “are probably easily attenuated by CSP

examination procedures and should not preclude an

individual's ability to successful[ly] complete” the

exam. See Soo-Tho Report at 3.

36a

Plaintiff has not shown that this conclusion was so

obviously invalid that the Agency could not honestly

have believed it. See Morris v. McCarthy, 825 F.3d

658, 671 (D.C. Cir. 2016) (explaining that the

“objective validity” of employer's reason bears on

whether it “honestly believed” it). For instance, he has

presented no evidence that his anxiety disorder — or

PTSD, for that matter — in fact caused his prior CSP

failures. While he reported to a polygraph examiner

and DIA investigator that he felt generally anxious

during the exams, see, e.g., 3/23/11 CSP at 2; DIA

Report at 2, he did not obtain a formal diagnosis of

anxiety disorder until October 2013, after he had

already failed four CSPs — failures that could have

exacerbated the symptoms resulting in the anxiety­

disorder diagnosis. See Health Record at 2; Dr. Jill

Tucillo Report at 1 (quoting Morter as saying that his

anxiety “became severe [around October 2013] when

his 'clearance was taken”') (typeface altered).

Second, Morter suggests that the Agency

“blatantly violated” certain “approved and relevant

regulations” by reassigning him. See Pl. Opp. at 13.

The argument apparently adverts to regulations

mentioned elsewhere in Plaintiffs Opposition briefspecifically, DOD Instruction 5210.91, Encl. 3, sec.

2(g) and Encl. 4, sec. 2(h). There is, however, no

evidence that DIA violated these regulations, so as to

support an inference of pretext. See Alford v. Def.

Intel. Agency, 908 F. Supp. 2d 164, 175 (D.D.C. 2012)

(acknowledging that “[i]n certain cases, an agency's

failure to follow its own regulations or established

procedure can provide sufficient evidence of pretext to

withstand summary judgment,” but finding

inadequate evidence).

37a

Section 2(g) of Enclosure 3 provides that “[n]o

unfavorable administrative action (to include access,

employment, assignment, and detail determinations)

shall be taken solely on the basis of.... an unresolved

[personnel security screening] examination, except as

provided in sections 6 and 7 of Enclosure 4.” DOD

Instruction 5210.91 at 10. The final clause of the rule

makes clear that it is subject to “sections 6 and 7 of

Enclosure 4.” Section 7 provides, in part, that when

DOD personnel in positions requiring security

screening (including CSPs, see id. at 13) “are unable

to resolve all relevant questions” of that screening,

the Agency shall give that person “an opportunity to

undergo additional examination,” and ifhe fails, it

may “temporarily suspend [his] access to controlled

information and deny [him] assignment or detail that

is contingent on such access.” Id. at 21. The Agency

must also advise the individual “that the

[aforementioned] determination may be appealed.”

Id. Here, of course, Morter received multiple

examinations, was reassigned after having flunked

all of them, and appealed the reassignment (albeit

without success).

Likewise, there is no evidence that the Agency

violated section 2(h) of Enclosure 4. That regulation

requires it to establish written procedures to

“[e]xempt or postpone examinations when individuals

are considered medically, psychologically, or

emotionally unfit to undergo an examination.” Id. at

17. Here, Morter was instructed to meet with Dr. SooTho to address essentially that question. See DIA

Emails at 2; Soo-Tho Report at 1. Soo-Tho concluded,

as already noted, that, “[f]rom a personnel security

vetting perspective,” his anxiety symptoms are

38a

“probably easily attenuated by CSP examination

procedures” and would not preclude him from

completing the exam. See Soo-Tho Report at 3. In fact,

he determined that Morter was “unlikely to be a

suitable candidate for further polygraph testing” only

because of his “lack of candor” (and associated

behavioral flaws) and alleged intent to “subvert” the

exam. Id. at 4. Despite this determination, the

Agency, in any event, ultimately praised Morter's

willingness to seek psychological treatment, granted

him another polygraph examination, and postponed

the date of that exam by at least six months, to allow

him time to receive sufficient counseling. See

Advisory Ltr. at 1; Security Review & Evaluation

Record at 1; see also 8/5/14 CSP. Such measures

appear to be consonant with the requirements of

section 2(h).

Third, Morter accuses DIA and SO COM of

“attempt[ing] to change their reasons for punishing

[him] by claiming that [he] researched the polygraph

then lied about it to the agency psychologist.” Pl. Opp.

at 13. As a general matter, “shifting and inconsistent

justifications are probative of pretext.” Geleta v. Gray,

645 F.3d 408,413 (D.C. Cir. 2011) (cleaned up). Here,

however, the Agency's reason for reassigning Plaintiff

has been entirely consistent: it believed, because of

his failed polygraph exams, that he posed more of a

security risk at SO COM than at DIA Headquarters.

See Reassignment Action Ltr.; DIA Emails at 7;

McIntosh Interrogatory at 8-9; Norton Interrogatory

at 7. The Agency did not cite his research into

polygraphs or Soo-Tho's conclusion that he was less

than forthcoming about it as a basis for reassigning

him. To the extent that the Secretary highlights those

39a

facts in his Motion for Summary Judgment, the Court

construes them as supporting the ultimate conclusion

that Morter posed a security risk at SOCOM (rather

than as a separate justification). See Def. MSJ at 19

(stating reassignment rationale that SOCOM “no

longer trusted” Plaintiff with handling Top Secret and

Sensitive Compartmented Information and citing the

conclusions of Dr. Soo-Tho's report as supporting

“contemporaneous evidence”).

No reasonable jury, in sum, could find on the

present record that Defendant's reason for

reassigning Morter to headquarters was a pretext for

disability discrimination.

C. Disparate Impact

Plaintiffs disparate-impact claim, finally, need

not long detain the Court. Such a theory targets

“employment practices that are facially neutral in

their treatment of different groups but ... in fact fall

more harshly on one group than another and cannot

be justified by business necessity.” Figueroa, 923 F.3d

at 1085 (cleaned up). The employee has an initial

burden to “identify the specific employment practice

allegedly causing a disparate effect” and to “make a

threshold showing of a significant statistical disparity

caused by that practice.” Id. (cleaned up).

The burden then shifts to the employer to “prove

the business necessity of the practice.” Id. (cleaned

up). Relying on statistics disclosed during discovery

in his EEO proceedings, Plaintiff here alleges that

13.25% of all DIA polygraph examinations result in

“No Opinion” and 5% result in “Significant Response.”

Pl. Opp. at 13. By his calculations, that amounts to,

respectively, about 4,000 and 1,500 employees who

received the same scores as he did. Id. “(Y]et there is

40a

no record,” he adds, of that many people “being

punished.” Id. at 13-14.

Without any evidence regarding the proportion of

mentally disabled individuals (let alone those with an

anxiety disorder specifically) in the Agency's employ

versus the proportion of such individuals who failed

the polygraph, there is little to be inferred from those

figures.

See, e.g., Figueroa, 923 F.3d at 1086

(comparing number of Hispanic and Latino

candidates who were promoted with their proportion

of the applicant pool and the overall promotion rate);

see also Feloni v. Mayorkas, 2023 WL 3180313, at *7

(D.D.C. May 1, 2023) (denying motion to dismiss

disparate-impact claim where plaintiff's statistics

“show[ed] that female trainees fail to meet [ICE's

physical-fitness] requirements at a far higher rate

than do their male colleagues”). In addition, without

any statistics showing that adverse actions were

taken against people in Plaintiffs (still-undefined)

class, no disparate impact exists. Plaintiff having

made no threshold showing that a disparity exists,

summary judgment for the Secretary on this count —

as with the prior two —• is inescapable.

IV. Conclusion

For the foregoing reasons, the Court will grant

Defendant's Motion for Summary Judgment and deny

Plaintiffs Cross-Motion. An Order so stating will issue

this day.

[s] James E. Boasberg

JAMES E. BOASBERG

Chief Judge

Date: February 26, 2024

41a

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

JOHN S. MORTER,

Plaintiff,

v.

LLOYD J. AUSTIN HI,

Defendant.

Civil Action No. 23-343 (JEB)

ORDER

For the reasons set forth in the accompanying

Memorandum Opinion, the Court ORDERS that: .

1. Defendant's [5] Motion for Summary Judgment

is GRANTED;

2. Plaintiffs [7] Motion for Summary Judgment is

DENIED; and

3. Judgment is ENTERED in favor of Defendant.

[s] James E. Boasberg

JAMES E. BOASBERG

Chief Judge

Date: February 26, 2024

42a

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 24-5056

September Term, 2025

l:23-cv-00343-JEB

FILED ON: September 18, 2025

John S. Morter,

Appellant

v.

Pete Hegseth, Secretary, Department of Defense,

Appellee

Before: MILLETT, KATSAS, and WALKER, Circuit

Judges.

ORDER

Upon consideration of appellant’s petition for

panel rehearing filed on September 5, 2025, that

includes a motion to vacate the panel opinion, vacate

the judgment, and remand for trial, it is

ORDERED that the petition be denied. It is.

FURTHER ORDERED that the motion be denied.

Per Curiam

FOR THE COURT:

Clifton B. Cislak, Clerk

43a

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

September Term, 2025

l:23-cv-00343-JEB

FILED ON: September 26, 2025 [2137360]

No. 24-5056

John S. Morter,

Appellant

v.

Pete Hegseth, Secretary, Department of Defense,

Appellee

MANDATE

In accordance with the judgment of July 22,

2025, and pursuant to Federal Rule of Appellate

Procedure 41, this constitutes the formal mandate of

this court.

FOR THE COURT:

Clifton B. Cislak, Clerk

44a

29 USC §794. Nondiscrimination under

Federal grants and programs

(a) Promulgation of rules and regulations

No otherwise qualified individual with a

disability in the United States, as defined in section

706(8) of this title, shall, solely by reason of her or

his disability, be excluded from the participation in,

be denied the benefits of, or be subjected to

discrimination under any program or activity

receiving Federal financial assistance or under any

program or activity conducted by any Executive

agency or by the United States Postal Service. The

head of each such agency shall promulgate such

regulations as may be necessary to carry out the

amendments to this section made by the

Rehabilitation, Comprehensive Services, and

Developmental Disabilities Act of 1978. Copies of

any proposed regulation shall be submitted to

appropriate authorizing committees of the

Congress, and such regulation may take effect no

earlier than the thirtieth day after the date on

which such regulation is so submitted to such

committees.

29 USC §794a. Remedies and attorney fees

(a) (1) The remedies, procedures, and rights set

forth in section 717 of the Civil Rights Act of 1964

(42 U.S.C. 2000e-16), including the application of

sections 706(f) through 706(k) (42 U.S.C. 2000e5(f) through (k)), shall be available, with respect

to any complaint under section 791 of this title, to

any employee or applicant for employment

aggrieved by the final disposition of such

complaint, or by the failure to take final action on

45a

such complaint. In fashioning an equitable or

affirmative action remedy under such section, a

court may take into account the reasonableness of

the cost of any necessary work place

accommodation,

and

the

availability

of

alternatives therefor or other appropriate relief in

order to achieve an equitable and appropriate

remedy.

42 U.S.C. §12112. Discrimination

(a) General rule. No covered entity shall

discriminate against a qualified individual with

a disability because of the disability of such

individual in regard to job application

procedures, the hiring, advancement, or

discharge of employees, employee compensation,

job training, and other terms, conditions, and

privileges of employment.

(b) Construction

As used in subsection (a) of this section, the

term "discriminate" includes(6) using qualification standards, employment

tests or other selection criteria that screen out

or tend to screen out an individual with a

disability or a class of individuals with

disabilities unless the standard, test or other

selection criteria, as used by the covered entity,

is shown to be job-related for the position in

question and is consistent with business

necessity

29 CFR § 1630.2 Definitions.

(n) Essential functions —

(1) In general. The term essential functions means

46a

the fundamental job duties of the employment

position the individual with a disability holds

or desires. The term “essential functions” does

not include the marginal functions of the

position.

(2) A job function may be considered essential for

any of several reasons, including but not

limited to the following:

(i) The function may be essential because the

reason the position exists is to perform that

function;

(ii) The function may be essential because of

the limited number of employees available

among whom the performance of that job

function can be distributed; and/or

(iii) The function may be highly specialized so

that the incumbent in the position is hired for

his or her expertise or ability to perform the

particular function.

(o) Reasonable accommodation.

(3) To determine the appropriate reasonable

accommodation it may be necessary for the

covered entity to initiate an informal,

interactive process with the individual with a

disability in need of the accommodation. This

process should identify the precise limitations

resulting from the disability and potential

reasonable

accommodations

that

could

overcome those limitations.

47a

DODI 5210.91 Polygraph and Credibility

Assessment (PCA) Procedures

ENCLOSURE 3 - PCA PROGRAM

2. GENERAL PROGRAM PROCEDURES

g. PCA examinations are a supplement to, not a

substitute for, other methods of screening or

investigation. No unfavorable administrative

action (to include access, employment,

assignment, and detail determinations) shall

be taken solely on the basis of either a refusal

to undergo a PSS examination or an unresolved

PSS examination, except as provided in

sections 6 and 7 of Enclosure 4.

ENCLOSURE 4 - POLYGRAPH EXAMINATIONS

2. PSS

PROGRAM

REQUIREMENTS

AND

PROCEDURES. The Heads of DoD Components

approved to conduct PSS examinations or

establish PSS programs to screen designated

personnel shall establish written procedures to:

h. Exempt or postpone examinations when

individuals

are

considered

medically,

psychologically, or emotionally unfit to

undergo an examination.

6. REFUSAL TO TAKE OR COMPLETE A PSS.

DoD-affiliated personnel who refuse to take or

complete a polygraph examination, and are in

positions designated as requiring a PSS

polygraph examination as part of determining

initial eligibility for access to Top Secret, SAP, or

48a

other sensitive intelligence or operational

information or for initial assignment or detail to

the CIA or other IC elements, may be denied

access, assignment, or detail.

7. FAILURE TO RESOLVE A PSS. DoD-affiliated

personnel in positions cited in section 6 of this

enclosure who are unable to resolve all relevant

questions of a PSS shall be so advised. The results

of the examination shall be forwarded to the

requesting agency.

a. If, after reviewing the examination results,

the requesting agency determines that they raise

a significant question relevant to the individual’s

eligibility for a security clearance or continued

access, the individual shall be given an

opportunity to undergo additional examination.

b. If the additional examination fails to resolve

all relevant questions, the Head of the DoD

Component may initiate a CI investigation in

accordance with DoD policy.

c. Additionally, the Head of the relevant DoD

Component may temporarily suspend an

individual’s access to controlled information and

deny the individual assignment or detail that is

contingent on such access, based upon a written

finding that, considering the results of the

examination and the extreme sensitivity of the

classified information involved, access under the

circumstances poses an unacceptable risk to the

national security. Such temporary suspension of

access may not form the part of any basis for an

adverse administrative action or an adverse

personnel action.

49a