UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JAMES P. MORRISSEY,
Plaintiff,
v. No. 25-cv-1297 (TSC)
MARKWAYNE MULLIN,
Defendant.
MEMORANDUM OPINION
Pro se Plaintiff James P. Morrissey alleges that his employer, the Department of
Homeland Security (“DHS”), failed to reasonably accommodate him after he underwent surgery,
and otherwise retaliated against him for his complaints about “the corruption that persists within
DHS.” Compl. ¶¶ 70, 74, 78, ECF No. 1. Defendant Markwayne Mullin, the Secretary of
Homeland Security, now moves to dismiss. See Def.’s Mot. to Dismiss, ECF No. 5 (“Def.’s
MTD”). Because Plaintiff has failed to state any claims, the court will GRANT the Motion.
I. LEGAL STANDARDS
For purposes of resolving the Motion to Dismiss, the court assumes the truth of the
Complaint’s factual allegations and draws all reasonable inferences in Plaintiff’s favor. See Nat’l
Ass’n of Postal Supervisors v. U.S. Postal Serv., 26 F.4th 960, 970 (D.C. Cir. 2022). The court
may also consider any document attached to or incorporated in the Complaint. See N. Am.
Butterfly Ass’n v. Wolf, 977 F.3d 1244, 1249 (D.C. Cir. 2020). Because Plaintiff is proceeding
pro se, his Complaint is construed liberally. See Saha v. Geo. Wash. Univ., 594 F. Supp. 2d 28,
29 (D.D.C. 2009). “[B]ut even a pro se complaint must contain sufficient factual matter,
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accepted as true, to state a claim for relief that is ‘plausible on its face.’” Davis v. Sarles, 134 F.
Supp. 3d 223, 226 (D.D.C. 2015) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “Although factual allegations are presumed to be true” at the pleading stage, legal
conclusions are not. Id. (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “Mere conclusory
statements,” moreover, “do not suffice.” Iqbal, 556 U.S. at 678 (cleaned up).
II. BACKGROUND
Plaintiff has worked as a Special Agent at DHS since November 1999. Compl. ¶ 7. In
2023, at the time of the events forming the basis of his current claims, Plaintiff was assigned to
Homeland Security Investigations Tampa (“HSI Tampa”). Compl. Ex. A at 2, ECF No. 1-1
(Final Agency Decision). According to the position description, Plaintiff’s job was a “physically
rigorous” one involving “extensive” travel and “the physical apprehension, search, arrest, and
transport of criminal suspects.” Id. at 3. It required the ability to use physical force in the
apprehension of criminal suspects. Id.
In September 2018, another driver rear-ended the government vehicle that Plaintiff was
operating. Compl. ¶ 6. As a result of this work-related crash, Plaintiff suffered a spinal neck
injury that initially went undetected. Id. ¶ 11. On April 3, 2023, Plaintiff took paid medical
leave to undergo major spinal surgery. Id. ¶ 10; Compl. Ex. A at 3. On May 3, he phoned his
supervisor, David Loerzel, requesting a reasonable accommodation; that same day, Plaintiff also
emailed Loerzel a doctor’s note. Compl. ¶¶ 12–13. The note explained that Plaintiff could not
return to work until at least July 7, but depending on his doctor’s reevaluation, could potentially
commence light duty at that point. See id. ¶¶ 13, 15–16. Loerzel replied that HSI Tampa did not
have any light-duty assignments. Id. ¶ 14. Plaintiff remained on approved paid leave, though he
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was required to use accrued leave. Compl. Ex. A at 4; see also Compl. ¶ 40; Pl.’s Opp’n at 7,
ECF No. 7.
On July 19, Loerzel acknowledged that Plaintiff “still [had] complications with [his]
recovery,” noting that he had not seen “a new note” from Plaintiff’s doctor. Compl. ¶ 15.
Plaintiff replied that when he saw his doctor for a reevaluation on July 7, the doctor “said I still
can not go back to work because I am not healing.” Id. ¶ 16. The doctor stated that Plaintiff was
“100% disabled not cleared to return back to work,” and indicated that the soonest Plaintiff could
return to work would be October 2023 in a light-duty position. Compl. Ex. A at 3. The doctor
explained that any light-duty assignment could not involve any strain on his neck, any physical
contact with people, and any travel apart from a short commute. Id. But Plaintiff went on to tell
Loerzel—inconsistent with his doctor’s opinion—“I can go back to work, but Tampa does not
provide a reasonable accommodation while I am potentially recovering.” Compl. ¶ 16. Plaintiff
asked whether DHS was denying him an accommodation “because I filed a lawsuit” separate
from this one. Id. This is Plaintiff’s fifth federal lawsuit against DHS. Id. ¶ 78.
At some point, Plaintiff also filed a claim with the Office of Workers’ Compensation
Programs (“OWCP”). See Compl. ¶¶ 22, 24. In early October, a DHS official informed Plaintiff
that workers’ compensation officials were still awaiting a medical exam report, but that Plaintiff
could receive a reasonable accommodation “separate and apart” from his workers’ compensation
claim while that claim was pending. Id. ¶ 24. Shortly thereafter, Loerzel began an “interactive
process” with Plaintiff to determine an appropriate light-duty assignment. Id. ¶ 27; see also
Compl. Ex. A at 4.
On November 3, DHS approved Plaintiff to return to HSI Tampa for a light-duty
assignment effective November 6. Compl. Ex. A at 4. Plaintiff requested, and received, a later
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report date of November 13, and he ultimately returned to work on either that day or November
14. Id.; see also Compl. ¶ 40. Plaintiff remained on paid leave between April 3, 2023, and his
return to light duty on November 13 or 14. Compl. Ex. A at 4; see also Compl. ¶ 40. On
November 14, Resident Agent in Charge John Yancey temporarily suspended Plaintiff’s
authorization to carry a firearm and badge because of “a medical condition that may impede the
safe and effective use of a firearm.” Compl. Ex. A at 4–5. Yancey informed Plaintiff that
“[d]uring this temporary suspension, you will be provided with work that is administrative in
nature and does not require that you be armed,” and that the suspension would be lifted once
DHS received “acceptable documentation which supports you are able” to safely handle a
firearm. Id. at 5. In February 2024, Plaintiff’s doctor determined that Plaintiff was able to return
to full duty with no restrictions, and Plaintiff was restored to full duty and reissued his badge and
firearm. Id.
Separately, in December 2023, Plaintiff’s EEO counseling concluded, and Plaintiff filed
an EEO complaint. Compl. ¶¶ 58–59. The agency investigated. Id. ¶¶ 60–62. In January 2025,
DHS’s Office for Civil Rights and Civil Liberties issued a Final Agency Decision denying
Plaintiff’s claims of discrimination. See generally Compl. Ex. A; see also Compl. ¶ 66. In April
2025, Plaintiff filed this lawsuit asserting two claims. In Count One, he alleges that Defendant
failed to reasonably accommodate him in violation of the Rehabilitation Act and Executive Order
13,164. Compl. ¶¶ 67–73. In Count Two, he asserts that Defendant retaliated against him in
violation of 42 U.S.C. § 2000e et seq. Id. ¶¶ 74–80. Plaintiff seeks $25 million in damages. See
Compl. – Prayer for Relief ¶ 3.
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III. ANALYSIS
a. Reasonable Accommodation
The Rehabilitation Act “protects” federal employees “according to the same standards
applied under the Americans with Disabilities Act.” Ali v. Regan, 111 F.4th 1264, 1268 (D.C.
Cir. 2024) (cleaned up).1 To that end, the Rehabilitation Act requires federal employers to
implement reasonable accommodations for their disabled employees. See id. If a federal
employer fails to do so, the aggrieved employee “may sue.” Id. “To prevail, [the] employee
must allege and prove that: (1) he is disabled, (2) his employer had notice of the disability, and
(3) the employer denied his request for a reasonable accommodation.” Id. at 1268–69 (citing
Stewart v. St. Elizabeth’s Hosp., 589 F.3d 1305, 1307–08 (D.C. Cir. 2010)). Plaintiff’s claim
founders on the third element. He cannot allege that DHS “denied his request for a reasonable
accommodation,” id., because DHS provided him paid leave while he was unable to work, and a
light-duty assignment until he could return to full duty.
An accommodation is reasonable if it “allow[s] an employee to perform the essential
functions of the job, without imposing undue hardship on the employer.” Saunders v. Galliher &
Huguely Assocs., 741 F. Supp. 2d 245, 249 (D.D.C. 2010). That does not mean, however, that
the accommodation must allow the employee to perform those functions without any interruption
whatsoever. See Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1247 (9th Cir. 1999) (a
plaintiff’s “inability to work during the leave period would not automatically render” leave
unreasonable). Federal courts have recognized a temporary “leave of absence as a reasonable
accommodation” when it allows the employee to recover from his disability such that he can
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Because the Rehabilitation Act incorporates the ADA’s standards, ADA cases “are applicable” to Rehabilitation Act claims. Montgomery v. McDonough, 682 F. Supp. 3d 1, 14 (D.D.C. 2023) (quoting Alston v. WMATA, 571 F. Supp. 2d 77, 81 (D.D.C. 2008)).
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“perform his essential job functions in the near future.” Conoshenti v. Public Serv. Elec. & Gas
Co., 364 F.3d 135, 151 (3d Cir. 2004). In other words, “leave may be reasonable where the
disability that interferes with an employee’s capacity to complete assigned tasks is temporary and
there is reason to believe that a leave of absence will provide a period during which the
employee will be able to recover and return to work.” Hannah v. United Parcel Serv., Inc., 72
F.4th 630, 637 (4th Cir. 2023); see also Criado v. IBM Corp., 145 F.3d 437, 444 (1st Cir. 1998)
(temporary leave was a reasonable accommodation where it allowed plaintiff time to treat her
disability so she could return to performing her job duties). Leave thus functions as a temporary
adjustment to the job, “similar” to a “modified work schedule[].” 42 U.S.C. § 12111(9). “Even
an extended medical leave . . . may be a reasonable accommodation if it does not pose an undue
hardship on the employer.” Dark v. Curry Cnty., 451 F.3d 1078, 1090 (9th Cir. 2006) (quoting
Nunes, 164 F.3d at 1247); see also Hancock v. Wash. Hosp. Ctr., 13 F. Supp. 3d 1, 11 (D.D.C.
2014) (“[A] leave of absence may constitute a reasonable accommodation[.]”); Hankins v. The
Gap, Inc., 84 F.3d 797, 801 (6th Cir. 1996) (“The EEOC specifically mentions the use of paid
and unpaid leave as a potential form of reasonable accommodation[.]”).
Applying those principles here, it is undisputed that DHS allowed Plaintiff to take paid
leave from April 3, 2023 (the day he left for surgery) until November 13 or 14 (the day he
returned to light duty). See Pl.’s Opp’n at 3–4; see also Compl. ¶ 40; Compl. Ex. A at 4. That
accommodation was reasonable because it gave Plaintiff time to undergo and recover from
surgery before returning to the performance of his duties.
Plaintiff contends that paid leave was not a reasonable accommodation, and that DHS
should have placed him on light duty instead. Pl.’s Opp’n at 3. The court disagrees. Paid leave
is an accommodation that employees ordinarily seek and employers resist as too costly or
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disruptive to their businesses. See Dark, 451 F.3d at 1090. The court is aware of no case where
an employee has complained about receiving an accommodation that provides them with full pay
and benefits while they receive needed treatment.
Although Plaintiff complains that he was required to use accrued leave during this
period, see Pl.’s Opp’n at 7, that does not render the accommodation unreasonable because even
fully unpaid leave can be reasonable. See, e.g., Hannah, 72 F.4th at 636–37 (holding that even
unpaid leave was a reasonable accommodation under the circumstances even though it
“prevented [the plaintiff] from earning his wages” (cleaned up)). Beyond the use of accrued
leave, there is no indication that paid leave otherwise disadvantaged Plaintiff relative to light
duty. Plaintiff nowhere alleges, for example, that paid leave cost him a career opportunity or
arrested his professional development.
More fundamentally, Plaintiff’s own doctor believed that Plaintiff was not cleared for
light duty, and so even if DHS had offered him a light-duty assignment, he could not have safely
performed it until at least October. Compl. Ex. A at 3. Specifically, the Complaint and the
attached document establish that Plaintiff’s physician said he could not return to work until he
was reevaluated on July 7. Compl. ¶ 16. At that reevaluation, the physician deemed Plaintiff
still “100% disabled not cleared to return back to work” and indicated that the earliest he could
return to even a light-duty assignment was six months after surgery, i.e., October. Compl. Ex. A
at 3; see also Compl. ¶ 16 (Plaintiff’s doctor told him on July 7 that “I still can not go back to
work because I am not healing”). Plaintiff’s contrary assertion that he could return to work in
May or July, see Compl. ¶¶ 13, 16, is therefore not plausible because his own doctor’s opinion
squarely contradicts it. Compl. Ex. A at 3; Compl. ¶ 16; see also Kaempe v. Myers, 367 F.3d
958, 963 (D.C. Cir. 2004). In any event, because Plaintiff was unable to show DHS that he was
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medically cleared to perform even light duty, DHS could not have reasonably provided him a
light-duty assignment. DHS was not required to credit Plaintiff’s assertions over Plaintiff’s own
doctor who had not cleared him to return to light duty. And indeed, promptly after light duty
became a viable option, DHS approved Plaintiff’s return effective November 6, and it was
Plaintiff who requested to delay his start date. See Compl. Ex. A at 4; see also Compl. ¶ 40.
Even assuming light duty was available earlier, Plaintiff’s preference for that
accommodation does not change the equation. “An employer is not required to provide an
employee that accommodation he requests or prefers, the employer need only provide some
reasonable accommodation.” Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1305 (D.C. Cir. 1998)
(cleaned up); see also Ali, 111 F.4th at 1269 (“An employer fully satisfies its statutory obligation
by offering an accommodation that is reasonable, even if it is not the one preferred by the
employee.”); Hannah, 72 F.4th at 636 (“[I]t is well settled that the ultimate discretion to choose
among reasonable accommodations rests with the employer.” (cleaned up)). DHS fully satisfied
its obligations by providing Plaintiff paid leave that allowed him to undergo and recover from
surgery, and Plaintiff cannot defeat the reasonableness of this accommodation merely because it
was not the best option for him or the option he preferred. His reasonable accommodation claim
therefore fails.
To the extent Plaintiff claims a violation of Executive Order 13,164, that claim is not
actionable. “An Executive Order devoted solely to the internal management of the executive
branch—and one which does not create any private rights—is not, for instance, subject to
judicial review.” Meyer v. Bush, 981 F.2d 1288, 1296 n.8 (D.C. Cir. 1993). Executive Order
13,164 “not only fail[s] to expressly authorize private actions against the government to enforce
[it],” but “expressly state[s] that [it is] not intended to create privately enforceable rights.”
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Savage v. Burwell, No. 15-cv-791, 2016 WL 4132196, at *3 (D.D.C. Aug. 3, 2016); see also
Exec. Order No. 13,164, 65 Fed. Reg. 46565, § 5(b) (July 26, 2000) (“This order is intended only
to improve internal management of the executive branch and does not create any right or benefit,
substantive or procedural, enforceable at law or equity by a party against the United States[.]”).
Plaintiff separately alleges that DHS treated him less favorably than other disabled
employees, asserting that “Defendant has provided reasonable accommodation to other
employees” but not to him. Compl. ¶ 71. In his Complaint, Plaintiff concedes that he cannot
presently identify those employees and instead rests his disparate treatment claim on his
“reasonable suspicion of such discrimination” because there is “no other logical explanation” for
Defendant’s failure to provide a light-duty assignment before November. Id. ¶ 72. In his
Opposition, Plaintiff offers a single, unnamed comparator—“another employee in the same DHS
office location . . . was permitted to return to work with reasonable accommodation, while
recovering from injuries without having to take annual and sick leave as the plaintiff did.” Pl.’s
Opp’n at 7. But although the burden at the pleading stage is “not onerous,” Plaintiff must still
allege “that a comparator was similarly positioned to [him] in at least some relevant respects, and
include[] enough detail” for the court to “plausibly infer that discrimination caused the
defendant’s differential treatment of the plaintiff.” Joyner v. Morrison & Foerster LLP, 140
F.4th 523, 531–32 (D.C. Cir. 2025) (cleaned up). Plaintiff’s allegations fail to clear even this low
bar. In his Complaint, he alleges no facts identifying those comparators or the circumstances of
their accommodations, and his bare “suspicion” of differential treatment is the sort of “naked
assertion devoid of further factual enhancement” that courts must reject. Iqbal, 556 U.S. at 678
(cleaned up). The single, unnamed comparator in his Opposition likewise fails because Plaintiff
does not allege that this comparator occupied a comparable position or had the same medical
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incapacity that rendered Plaintiff ineligible for light duty. Plaintiff’s disparate treatment theory
therefore cannot survive the pleading stage, and Count One will be dismissed.
b. Retaliation
The Complaint also contains a Title VII retaliation claim. Although Defendant moved to
dismiss that claim, see Def.’s MTD at 13–17, Plaintiff’s entire Opposition focused on the issue of
reasonable accommodation and did not respond to Defendant’s retaliation arguments. See
generally Pl.’s Opp’n at 1–12. The court specifically “warned” Plaintiff that if he “submits an
opposition but fails to address each of Defendant’s arguments in his opposition, the court may
treat as conceded any arguments which were not addressed.” See Order at 1–2, ECF No. 6. “It is
well understood in this Circuit that when a plaintiff files an opposition to a dispositive motion
and addresses only certain arguments raised by the defendant, a court may treat those arguments
that the plaintiff failed to address as conceded.” Hopkins v. Women’s Div., Gen. Bd. of Glob.
Ministries, 284 F. Supp. 2d 15, 25 (D.D.C. 2003); see also Glass v. LaHood, 786 F. Supp. 2d
189, 210 (D.D.C. 2011) (same). Because Plaintiff failed to address Defendant’s arguments for
dismissing the retaliation claim, the court will treat dismissal of that claim as conceded.
In any event, Plaintiff fails to state any retaliation claim under Title VII or otherwise. To
start, “Title VII prohibits employers from discriminating against employees on the basis of race,
color, religion, sex, or national origin.” Ames v. Ohio Dep’t of Youth Servs., 605 U.S. 303, 305
(2025). “Title VII’s anti-retaliation provision prohibits an employer from discriminating against
an employee because the employee ‘opposed any practice’ made unlawful by Title VII or ‘made a
charge, testified, assisted, or participated in’ a Title VII proceeding or investigation.” Clemmons
v. Academy for Educ. Dev., 107 F. Supp. 3d 100, 128 (D.D.C. 2015) (quoting Manuel v. Potter,
685 F. Supp. 2d 46, 65 (D.D.C. 2010)) (emphasis added). Most of Plaintiff’s alleged protected
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activity is disability based, not based on what Title VII encompasses (race, color, religion, sex, or
national origin). Thus, Plaintiff’s protected activity claim is more properly rooted in the
Rehabilitation Act, which “bars employers from retaliating against employees who lodge
complaints of discrimination” based on disability. Belton v. Snyder, 249 F. Supp. 3d 14, 26
(D.D.C. 2017) (citing Smith v. District of Columbia, 430 F.3d 450, 454–55 (D.C. Cir. 2005)).
Nevertheless, the standards for a retaliation claim under Title VII mirror the standards for a
retaliation claim under the Rehabilitation Act. Id.; see also Walker v. Child.’s Nat’l Med. Ctr.,
236 F. Supp. 3d 136, 144 (D.D.C. 2017). To make out either claim, Plaintiff must allege that “(1)
he engaged in a statutorily protect[ed] activity; (2) that he suffered a materially adverse action by
his employer; and (3) that a causal link connects the two.” Belton, 249 F. Supp. 3d at 26 (quoting
Jones v. Bernanke, 557 F.3d 670, 677 (D.C. Cir. 2009)). Regardless of what statute applies,
Plaintiff has not adequately pleaded these elements.
First, Plaintiff alleges that DHS retaliated against him for a complaint he made in 2010 to
a Senator’s office “about the corruption that persists within DHS” and alleged mishandling of
sexual assault investigations. Compl. ¶¶ 74–75. Specifically, in 2011, a Special Agent in Charge
looked at Plaintiff and said, “So you are the one” who complained to the Senator’s office. Id. ¶
76. Plaintiff replied, “Yes, I am the one, the one whose parents did their job, I am the one
opposed to women being punched in the face, clothes ripped from their bodies, raped, punched in
the face again, then told, tell whoever you want, who would believe the word of a n***er over a
white man.” Id. ¶ 77. Plaintiff alleges that ever since “the cowards that infest DHS management
. . . have continuously retaliated against” him. Id. (cleaned up). But any retaliation that stems
from these events is not actionable under either Title VII or the Rehabilitation Act. Although
Plaintiff may have complained about how DHS agents treated members of the public who were
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women and people of color, about the mishandling of sexual assault investigations, and agency
“corruption” more broadly, that is not protected activity under either statute. Both statutes
protect only an employee’s opposition to discriminatory employment practices. See Logan v. City
of Chicago, 4 F.4th 529, 539 (7th Cir. 2021) (explaining that “Title VII is not a general bad acts
statute,” but rather specifically “prohibits an employer from retaliating against an employee from
opposing an unlawful employment practice,” not for opposing the “discrimination or harassment
of non-employees” (cleaned up)). Plaintiff, by contrast, complained about law enforcement
misconduct toward the public. Neither Title VII nor the Rehabilitation Act extends to such
matters, however serious the underlying allegations. See Wimmer v. Suffolk Cnty. Police Dep’t,
176 F.3d 125, 135 (2d Cir. 1999) (Plaintiff’s “claim of retaliation is not cognizable under Title
VII because” his complaints “that certain members of the Department had acted in a
discriminatory manner toward the public” was not “opposition . . . directed at an unlawful
employment practice of his employer.” (emphasis in original)); see also Crowley v. Prince
George’s Cnty., 890 F.2d 683, 687 (4th Cir. 1989) (“While Congress may decide to extend [Title
VII’s] coverage to persons who bring any discriminatory practice . . . to light . . . such a step lies
beyond the province of the courts.”).
Plaintiff next alleges that DHS retaliated against him for filing various EEO complaints
and an earlier civil action against DHS alleging violations of the ADA and Rehabilitation Act.
See Compl. ¶¶ 16, 78–80. This likely constitutes protected activity, but Plaintiff’s retaliation
claim nevertheless fails at the second and third elements. Construing his Complaint liberally, it
appears that Plaintiff alleges that DHS retaliated by (1) filing “false affidavit[s]” disputing his
claims in federal court, see id. ¶¶ 79–80; (2) denying him light duty between May and November
2023, see id. ¶ 16; and (3) temporarily suspending his ability to carry a firearm and badge until
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he was fully cleared by his doctor, see Compl. Ex. A at 4–5. But the first allegation does not rise
to the level of a materially adverse action, and Plaintiff has not plausibly alleged that “his
protected activity was a but-for cause of” the latter two actions. Ho v. Garland, 106 F.4th 47, 51
(D.C. Cir. 2024); see also Cooper v. District of Columbia, 279 F. Supp. 3d 156, 164 (D.D.C.
2017) (“Retaliation claims must be proved according to traditional principles of but-for causation
meaning that the adverse action would not have occurred absent the retaliatory motive.” (cleaned
up)).
First, a challenged action must be “materially adverse.” Burlington N. & Santa Fe Ry.
Co. v. White, 548 U.S. 53, 68 (2006). This requirement of “material adversity . . . separate[s]
significant from trivial harms.” Id. (emphasis in original). The challenged action must be
significant enough that “it well might have dissuaded a reasonable worker from making or
supporting a charge of discrimination.” Id. (cleaned up). “Typically, a materially adverse action
in the workplace involves ‘a significant change in employment status, such as hiring, firing,
failing to promote, reassignment with significantly different responsibilities, or a decision
causing significant change in benefits.’” Bridgeforth v. Jewell, 721 F.3d 661, 663 (D.C. Cir.
2013) (quoting Taylor v. Small, 350 F.3d 1286, 1293 (D.C. Cir. 2003)). Submitting allegedly
false affidavits to oppose Plaintiff’s earlier lawsuit does not clear this bar. Defending against
litigation—including by submitting declarations a plaintiff believes to be incorrect—is ordinary
adversarial conduct, not the kind of retaliatory act that would dissuade a reasonable worker from
making a charge of discrimination. A plaintiff’s disagreement with the veracity of litigation
documents is a matter to be handled during that litigation, not an independently actionable act of
retaliation.
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Second, Plaintiff has failed to allege that retaliation was the but-for cause of the other
challenged actions. Plaintiff’s “own pleadings raise—and then offer nothing to rebut—at least
one alternative explanation” for why Defendant denied him a light-duty assignment and then
suspended his ability to carry a firearm and badge when he returned to light duty until he was
cleared by his doctor in February 2024. Joyner, 140 F.4th at 534. As discussed above, Plaintiff’s
doctor indicated that Plaintiff was still disabled and unable to return to even light duty until at
least October 2023, and Plaintiff did not submit medical documentation fully clearing him for
light duty until February 2024. It is more than reasonable to infer that Defendant thus denied
him light duty and suspended his badge and gun not to punish him, but because he had not
demonstrated that he was medically cleared to work and to safely carry a firearm. “That
‘obvious alternative explanation’ . . . confirms that [retaliation] is not a plausible inference.” Id.
(quoting Ho, 106 F.4th at 54). In sum, Plaintiff’s naked assertions of retaliatory motive fail to
sustain his retaliation claim.
Finally, Plaintiff’s passing references to a “hostile work environment” and “prolonged
harassment” are insufficient to plead a retaliatory hostile work environment claim. Compl. ¶ 78;
id. – Prayer for Relief ¶ 3. Even liberal pro se pleading standards do not require the court to
construct a claim Plaintiff did not meaningfully plead. See Leisure v. Hogan, 21 F. App’x 277,
278 (6th Cir. 2001) (“The less stringent standard for pro se plaintiffs does not compel courts to
conjure up unpleaded facts to support conclusory allegations.”). Plaintiff nowhere pleads facts
showing “discriminatory intimidation, ridicule and insult of such severity or pervasiveness as to
alter the conditions of . . . employment and create an abusive working environment.” Hussain v.
Nicholson, 435 F.3d 359, 366 (D.C. Cir. 2006) (cleaned up). At most, Plaintiff alleges one
encounter with his supervisor in November 2023 in which his supervisor held “both his hands on
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top of his firearms and twist[ed] and turn[ed] his body,” questioning Plaintiff “can you do this,
can you do this?” Compl. ¶ 39. A supervisor asking an agent who recently returned from
surgery and who had not been medically cleared whether he could safely handle a firearm is
hardly the sort of severe or pervasive conduct that could support a hostile work environment
claim. In any event, this claim would founder on causation for the same reasons discussed
above: Plaintiff’s own pleadings supply an obvious, non-retaliatory explanation for why DHS
officials were concerned about his capacity to handle a gun.
IV. CONCLUSION
For the foregoing reasons, the court will GRANT Defendant’s Motion to Dismiss, ECF No.
5. A separate order will follow this opinion.
Date: July 13, 2026
Tanya S. Chutkan
TANYA S. CHUTKAN
United States District Judge
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