Rush v. Federal National Mortgage Association , 208 F. Supp. 3d 1 ( 2016 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
MICHELLE RUSH and )
LAWANDA BRITT, )
)
Plaintiffs, )
) Civil No. 15-1569
v. )
)
FEDERAL NATIONAL MORTGAGE )
ASSOCIATION, a/k/a Fannie )
Mae )
)
Defendant. )
______________________________)
MEMORADUM OPINION
Plaintiffs Lawanda Britt (“Ms. Britt”) and Michelle Rush
(“Ms. Rush”) (collectively “Plaintiffs”) filed suit against
Defendant Federal National Mortgage Association (“Defendant” or
“Fannie Mae”) on September 25, 2015. See generally, First Am.
Compl., ECF No. 1-2. Plaintiffs allege they were terminated
because of religious and racial discrimination, retaliation and
other unlawful discrimination. Id. ¶¶ 346-98. Specifically, Ms.
Britt alleges four claims: religious discrimination in
employment termination in violation of the D.C. Human Rights Act
(DCHRA) and Title VII (Count I); retaliation firing due to
racial and religious Discrimination in Violation of Title VII,
42 U.S.C. § 1981 and DCHRA (Count II); unlawful hostile working
environment on account of color under Title VII and DCHRA (Count
1
III); and failure to provide reasonable religious accommodations
under Title VII and DCHRA (Count IV). Id. ¶¶ 346-78. Ms. Rush
alleges three claims: retaliation by employment termination in
violation of DCHRA (Count V); race discrimination in violation
of the DCHRA (Count VI); and unlawful family responsibilities
discrimination in violation of DCHRA (Count VII). Id. ¶¶ 378-92.
Ms. Britt and Ms. Rush filed timely charges with the EEOC and
the D.C. Office of Human Rights. Id. ¶ 6, 20. 1 On November 5,
2015, Fannie Mae filed a Motion for Summary Judgment. Def.’s
Mot. Summ. J., ECF No. 7 at 1. Upon review of Defendants’
motions, responses and replies thereto and for the reasons
discussed below, Defendant’s Motions for Summary Judgment as to
Ms. Britt and Ms. Rush’s claims are GRANTED. 2
1 Both Plaintiffs participated in independent arbitration
hearings through JAMS, each lasting at least one week. Def.’s
Mem. Supp. Summ. J. Britt, ECF No. 7-1 at 2. In separate 16-page
opinions, JAMS arbitrators ruled in favor of Fannie Mae. Id. at
3. However, pursuant to Fannie Mae’s arbitration policy,
“[p]laintiff has 30 days from the date of the final award to
reject the award” and “[d]efendant agrees to toll the statute of
limitations for 60 days after a final award has been rejected.”
First Am. Compl. ¶¶ 14-17 and ¶¶ 27-29. Plaintiffs rejected the
JAMS rulings and filed this suit. The record before the Court
includes arbitration testimony.
2 Ms. Rush conceded that her Title VII claims were untimely prior
to arbitration. Def.’s Mem. Supp. Rush at 23. Although Ms.
Rush’s claims are now limited to her D.C. Human Rights Act
claims, Fannie Mae asserts that its federal charter “vests it
with an unconditional right to remove this action to this Court”
and that the Court therefore has subject matter jurisdiction
over Rush’s state law claims pursuant to 12 U.S.C. § 1723a(a);
see Pirelli Armstrong Tire Corp. Retiree Med. Benefits Trust v.
2
I. Background
A. Ms. Britt’s employment at Fannie Mae
Ms. Britt identifies as multi-race, light skinned, and
Muslim. Pl.’s Resp. Def.’s Statement Facts, ECF No. 14-3 ¶ 2.
Ms. Britt was hired by Fannie Mae as an Administrative Assistant
in 2004 on a contract basis. Id. ¶ 1; Def.’s Statement Facts,
ECF No. 9-1, ¶ 1. 3 In 2007, Ms. Britt joined the Records
Management Team and was responsible for executing duties related
to Fannie Mae’s Offsite Storage Program, including processing
requests to ship and receive boxes from Iron Mountain (Fannie
Mae’s offsite storage vendor), drafting policies and procedures
for the program, and serving as liaison between Fannie Mae and
Iron Mountain. Id. ¶ 3. Ms. Britt was paid by the hour as a non-
exempt employee. Britt’s Final Arb. Award, ECF No. 6-79 at 2.
In 2011, Nancy Jardini (“Ms. Jardini”), Fannie Mae’s Chief
Compliance and Ethics officer, restructured the Records
Management Team. Def.’s Statement Facts ¶ 6. Ms. Jardini placed
Jaci Myers (“Ms. Myers”) in charge of the Records Management
team. Id. ¶ 8. Ms. Jardini and Ms. Myers are white. Ms. Myers
Raines, 534 F.3d 779 (D.C. Cir. 2008) (“[w]e find that there is
federal jurisdiction because the Fannie Mae “sue and be sued”
provision expressly refers to the federal courts . . . .”).
3 The Court generally relies on Defendant’ statement of facts,
but notes when Plaintiff’s statement of facts differ
significantly.
3
selected Sonia Trask (“Ms. Trask”) to serve as a Project
Manager. Ms. Trask became Ms. Britt’s immediate supervisor and
is black, of Caribbean decent. Id. ¶ 12. Ms. Myers selected
Erica Wilson (“Ms. Wilson”) to serve as Director of Records
Management. Id. ¶ 20. Ms. Wilson is black and was Ms. Britt’s
second-level supervisor. Id. Ms. Trask and Ms. Wilson were both
hired for positions previously held my white managers who were
terminated as a result of the restructuring. Id. ¶ 14, 20.
B. Issues with Ms. Britt’s performance
From late 2011 through the fall of 2012, the Records
Management Team leadership began documenting Ms. Britt’s
performance deficiencies. Def.’s Statement Facts ¶ 111. Starting
in early 2012, weekly meetings were held where Britt was
“counseled about management’s concerns including the timeliness
of her work, typographical errors in her written projects, and
the disproportionate amount of supervision she required.” Id.
Four specific trouble areas were identified, including: (1)
issues with the off-site storage program; (2) out on reference
boxes; (3) the Iron Mountain portal; and (4) O-level boxes. Each
of these four areas, discussed in more detail below, are
highlighted in Ms. Britt’s termination memorandum, dated October
4, 2012. Termination Memorandum, ECF No. 9-66.
4
1. Dashboard for Off-site Storage Program
At the end of 2011, Ms. Wilson completed a risk assessment of
the offsite storage program. Def.’s Statement Facts ¶ 28. Ms.
Britt assisted with the assessment and although Ms. Wilson
concluded that Ms. Britt could effectively manage the daily
offsite storage functions, Ms. Wilson observed that Ms. Britt
“lacked an appreciation of the legal, financial and reputational
risks involved in the Offsite Storage Program.” Id.
Ms. Wilson grew concerned about Fannie Mae’s inability to
monitor offsite storage activity. Def.’s Statement Facts ¶ 100.
As a result, Ms. Britt was tasked with designing a high-level
dashboard that would provide “a snapshot of the Program by
division, including the volume of boxes shipped, retrieved, or
stored.” Id. Ms. Wilson assumed Ms. Britt had the technical
skills to develop a dashboard because such technology was
commonly used at Fannie Mae. Id. ¶ 101. However, Ms. Britt
struggled to produce a dashboard as requested by Ms. Wilson. Id.
Ms. Britt alleges that Ms. Myers “set [her] up to fail on [the
dashboard] project to justify her later termination.” First Am.
Compl. ¶¶ 68-9. In support of this allegation, Ms. Britt claims
that she was “enthusiastic” about the project, but had never
been trained in management reporting. Id. Ms. Britt alleges that
despite producing drafts of the dashboard, Ms. Myers did not
provide any feedback or other opportunities for training. Id. ¶
5
87. Fannie Mae insists that Ms. Britt failed to request
additional training and declined to follow-up on trainings
recommended by her co-worker Lisa Summers (“Ms. Summers”). Id.
¶¶ 103-7. According to Ms. Summers, Ms. Britt was “frustrated
with the dashboard project and appeared to lose interest.” Id. ¶
105.
2. Out on Reference Boxes
In early 2012, Ms. Wilson and the Records Management Team
discovered that nearly 2,000 boxes of Fannie Mae records were
missing despite being identified as retrieved from Iron
Mountain. Def.’s Statement Facts ¶ 78. These boxes contained
sensitive, confidential information such as borrower security
social security and bank account numbers. Id. ¶ 88. Defendant
maintains that it was Ms. Britt’s obligation to monitor the
location of the boxes. Id. ¶ 79. When the Records Management
Team asked Ms. Britt to develop a system to locate the missing
boxes, Ms. Britt failed and the assignment was reassigned to Ms.
Trask. Def.’s Statement Facts ¶ 89.
3. Iron Mountain Portal
Ms. Wilson also identified a risk relating to the web portal
that connected Fannie Mae and Iron Mountain. Id. ¶ 91. A number
of employees and former employees had access to the portal and
could ship and receive Fannie Mae boxes and even had the ability
to have boxes with confidential information shipped to their
6
homes. Id. Ms. Britt was responsible for managing this system.
Id. Ms. Wilson asserts that Ms. Britt “did not grasp the
financial, reputational and legal risks associated with this
lack of control” and did not take any remedial steps to fix the
issue when it was brought to her attention. Id. ¶ 94.
4. O-level boxes
Another example highlighted by Fannie Mae as indicative of Ms.
Britt’s inadequate work performance relates to Ms. Britt’s
inability to devise a plan for determining whether any
confidential or business documents existed in boxes that were
left at an old office location. Id. ¶ 96. Ms. Wilson alleges
that Ms. Britt’s plan was “ill-conceived and poorly written,”
and that the two met several times to discuss how the plan could
be improved. Id. ¶ 97. Ms. Britt admits that the project was
assigned to her, but contends neither Ms. Wilson nor Ms. Myers
communicated their lack of satisfaction with how she carried out
her responsibilities. Pl.’s Mem. Opp. at 32.
C. Ms. Britt’s Ramadan Request
On July 12, 2012, Ms. Britt requested that her regular
hours of 9:30 a.m. to 6:00 p.m. be modified to 7:30 a.m. to 4:00
p.m. so that she “could be home for the Maghrib prayer, the
final prayer before the end of fasting.” First Am. Compl. ¶ 101. 4
4 During the holy month of Ramadan, Muslims fast from sun rise to
sun set. ECF No. 9-57.
7
Prior to submitting a formal request, Ms. Britt testified that
she spoke to Ms. Wilson in June 2012 about her request to modify
her hours. Britt Arb. Tr., ECF No. 9-3 at 67. Ms. Wilson
responded that modifying Ms. Britt’s hours “would be no
problem.” Id.; see also 814: 11-13. Later, Ms. Wilson’s
superiors informed her that Ms. Britt’s request should be
submitted to Marian Stevens (“Ms. Stevens”), Fannie Mae’s
Workplace Accommodations coordinator. Def.’s Statement Facts ¶
117. In accordance with Ms. Wilson’s instruction, Ms. Britt
submitted her formal request for modified hours to Ms. Stevens
on July 11, 2012. Britt-Stevens email exchange, ECF No. 9-58.
Ms. Stevens denied the request due to a lack of evidence of Ms.
Britt’s “seriously held religious belief.” Id. However, Ms.
Wilson confirmed that she could grant Ms. Britt’s request
despite Human Resources’ recommended denial. Def.’s Statement
Facts ¶¶ 117-23. Ms. Wilson agreed to let Ms. Britt work from
8:30 a.m. to 5:00 p.m. on the condition that Ms. Britt notify
Ms. Wilson each day by email when she arrived, when she left,
and she was away from her desk for a significant period of time.
Id. ¶ 122-23. Ms. Britt objected to the reporting condition,
arguing it suggested “a lack of trust.” Wilson-Britt email, ECF
No. 9-61. Ms. Wilson responded by stating that Ms. Britt’s
“inability to independently complete project tasks (i.e. Out on
8
Reference, Offsite Storage Dashboard, etc.)” was her rationale
for including the condition. Id.
Ms. Britt met with Ms. Trask on July 18, 2012 and stated
that she could not “go through Ramadan with this unfair
treatment and issues”. First Am. Compl. ¶ 266; Trask Summ.
Email, ECF No. 14-15. She further complained that “it was not
fair she was unable to change her hours due to Ramadan and
unfair about being told she cannot work independently. . . .”
Id. An email summary of this conversation was sent from Ms.
Trask to Ms. Wilson, Ms. Myers and Ms. Gaither. Trask Summ.
Email, ECF No. 14-15.
D. Ms. Britt’s 2012 mid-year review
Based on the various weaknesses in Ms. Britt’s performance
discussed above, Ms. Wilson worked with Ms. Gaither to draft an
individual development plan (IDP) for Ms. Britt prior to her
2012 mid-year review. Def.’s Statement Facts ¶ 126. The IDP was
designed to (1) identify gaps in Ms. Britt’s performance; (2)
note the tactical behaviors in need of improvement; (3) identify
training resources; and (4) set target completion dates. Id. ¶
126.
Ms. Britt’s 2012 mid-year review took place on July 20,
2012. Britt July 2012 Review, ECF No. 9-63. Ms. Britt was rated
“on track” because, as Ms. Wilson testified, she was unsure
whether Ms. Britt’s performance was “blurred by her reporting to
9
[Ms. Trask] and the contentious relationship or whether it was
truly . . . [a] performance issue . . . .” Id. ¶ 125. 5
Nevertheless, Ms. Wilson gave Ms. Britt a “strong message” that
she was “trending downward” in her performance. Id. ¶ 128.
Cognizant of her deficient performance in several areas,
Ms. Britt attended her mid-year review with a prepared letter of
defense. Id. ¶ 131. Ms. Rush helped Ms. Britt draft the letter
which expressed Ms. Britt’s concern about “the performance
expectations that have been put upon [her] during 2012” and that
she was being unfairly critiqued because she had never been
given training nor was expected to perform the type of work now
requested of her when she was first hired by Fannie Mae. Pl.’s
Ex. 13. Specifically, Ms. Britt contends that Ms. Trask and Ms.
Wilson “watched [her] struggle” with projects for weeks, “when
in reality [she] had no idea what the report was expected to
look like.” Id. The letter itself makes no mention of Ramadan or
religious or racial discrimination. Ms. Britt later testified
that:
In crafting [the defense letter] my emotions,
how I was feeling at that time, my inability
5 Although not relevant to the Court’s ultimate resolution of
this matter, the record shows that Ms. Britt and Ms. Trask had a
contentious relationship. For example, Ms. Britt alleges that
Ms. Trask said that if she lived in England, Ms. Britt would be
privileged because people of Ms. Britt’s skin tone were treated
differently. First Am. Compl. ¶ 38. Ms. Trask allegedly “stomped
around the office, sat on Britt’s desk in a demeaning manner,
screamed at Britt and belittled Britt.” Id. ¶ 37.
10
to work independently, to me had nothing to do
with me requesting my hours be changed due to
Ramadan.
Def.’s Statement Facts ¶ 133 (citing Britt’s testimony, Ex. 64).
E. Ms. Britt’s termination.
Following Ms. Britt’s 2012 mid-year review, Ms. Wilson
served as Ms. Britt’s direct supervisor and continued to observe
a downward trend in Ms. Britt’s performance. Id. ¶ 135. Although
Ms. Wilson concluded that Ms. Britt could run the daily off-site
storage operations effectively, she deemed that Ms. Britt
“lacked an overall understanding of the process and the skills
to lead the Offsite Storage Program into the future.” Def.’s
Statement Facts ¶ 135. Ms. Wilson drafted a memorandum dated
October 4, 2012 recommending Ms. Britt be terminated
immediately. Ms. Gather reviewed the termination memo and
verified the factual details described therein. Id. ¶ 138.
Ms. Britt was terminated from employment on October 23,
2012. Compl. ¶ 185. Ms. Wilson signed the final memorandum
“Justification for Termination of LaWanda Britt,” which stated
that Ms. Britt’s failed to adequately perform her
responsibilities. Id. ¶ 177. These responsibilities included
management of the out on reference and O-level boxes, the
dashboard project, as well as consistent preparation of publish
ready, error-free deliverables. Id. ¶ 178-84. Ms. Wilson claims
she had no knowledge that Ms. Britt had voiced a concern that
11
she had been subjected to discrimination and asserts that her
protected class did not factor into the decision to terminate
Ms. Britt’s employment. Id. ¶ 113.
F. Ms. Rush’s employment at Fannie Mae
Ms. Rush was hired by Fannie Mae in 2002 and by 2011 she
served as a Compliance and Ethics Specialist IV on the Records
Management Team. Def.’s Mem. Supp. Summ. J. Rush (“Def.’s Rush
Mem. Supp.”), ECF No. 11 at 5. Ms. Rush is African American and
maintained a close relationship with Ms. Britt at work. For
example, Ms. Rush assisted Ms. Britt in drafting Ms. Britt’s
July 2012 performance defense memorandum. First Am. Compl. ¶¶
272-75.
When the Records Management Team was restructured in
January 2012, one of the issues emphasized by leadership was
timely arrival to work. Def.’s Rush Mem. Supp. at 7. Ms. Rush
concedes that “Prior to July 20, 2012, [she] was late to work by
a few minutes practically every day.” First Am. Compl. ¶ 188.
Ms. Myers informed Ms. Rush that being late even “one minute”
would be considered an unscheduled absence. Def.’s Statement
Facts ¶ 38. More than six unscheduled absences each year was
cause for termination. Def.’s Rush Mem. Supp. at 8.
Because Ms. Rush established a pattern of arriving to work
late, Ms. Myers began pulling badge reports in March 2012 to
12
determine exactly what time Ms. Rush was arriving to work. 6
Def.’s Rush Mem. Supp. at 10. Ms. Rush concedes that according
to the badge reports, she was late 78 percent of the time as of
April 2012. First Am. Compl. ¶ 138. Ms. Rush’s chronic tardiness
lead to an “off track” rating during her mid-year review in July
2012. Def.’s Rush Mem. Supp. at 13.
At some point around August 2012, Fannie Mae discovered
that Ms. Rush was “double badging” in an apparent effort to
misrepresent her time of arrival. Def.’s Rush Mem. Supp. at 19.
Ms. Rush would swipe her badge, then go park her car, and return
to the office and swipe her badge again. Id. Ultimately, Rush
was terminated on August 28, 2012 because “she consistently
arrived to the office after her agreed upon arrival time, failed
to follow explicit instructions that when she was going to be
late that she inform both Myers and Wilson, and because she
engaged in a scheme to distort her arrival time to the office
after being counseled that any further late arrivals could be
grounds for termination.” Id. at 30.
II. Standard of Review
Under Rule 56 of the Federal Rules of Civil Procedure, summary
judgment is appropriate if the pleadings on file, together with
6 The “badge reports” indicate employee arrival times based on
when the employee swipes their employee card to enter Fannie
Mae. Def.’s Rush Mem. Supp. at 19.
13
the affidavits, if any, show that there is no genuine issue as
to any material fact and that the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(c). Material
facts are those that “might affect the outcome of the suit under
the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). The party
seeking summary judgment bears the initial burden of
demonstrating an absence of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91
L. Ed. 2d 265 (1986); Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir.
1994).
In considering whether there is a triable issue of fact, the
court must draw all reasonable inferences in favor of the non-
moving party. Tao, 27 F.3d at 638. The non-moving party's
opposition, however, must consist of more than mere unsupported
allegations or denials and must be supported by affidavits or
other competent evidence setting forth specific facts showing
that there is a genuine issue for trial. Fed. R. Civ. P. 56(e);
see Celotex Corp., 477 U.S. at 324, 106 S. Ct. 2548. In
employment discrimination cases, summary judgment is appropriate
“where either evidence is insufficient to establish a prima
facie case, or, assuming a prima facie case, there is no genuine
issue of material fact that the defendant's articulated non-
discriminatory reason for the challenged decision is
14
pretextual.” Paul v. Fed. Nat'l Mortgage Ass'n, 697 F. Supp.
541, 553 (D.D.C. 1988) (citations omitted).
III. Discussion
A. Ms. Britt’s retaliation claim was properly exhausted
Fannie Mae argues Ms. Britt failed to exhaust her
administrative remedies as to her retaliation claim because her
2013 amended EEOC charge “fails to contend that Wilson, or
anyone else at Fannie Mae, retaliated against her because she
raised complaints about such [religious] discrimination.” Def.’s
Mem. Supp. at 15. Ms. Britt argues that the amended EEOC charge
incorporating religious discrimination “provided Fannie Mae with
notice of all the key elements to her charge, and neglected to
do just one thing: tie the retaliation allegation to the
particular protected activity that the evidence has now revealed
as decisive.” Pl.’s Mem. Opp., ECF No. 14 at 7.
“A federal employee filing a Title VII action must exhaust his
or her administrative remedies before seeking judicial review.”
Brodetski v. Duffey, 199 F.R.D. 14, 18 (D.D.C. 2001) (citing
Brown v. Gen. Servs. Admin., 425 U.S. 820, 832–33, 96 S. Ct.
1961, 48 L. Ed. 2d 402 (1976)). In addition to specific time
restraints, Title VII lawsuits following an EEOC charge must be
“limited in scope to claims that are ‘like or reasonably related
to the allegations of the charge and growing out of such
allegations.’” Park v. Howard Univ., 71 F.3d 904, 907 (D.C. Cir.
15
1995) (quoting Cheek v. Western and Southern Life Ins. Co., 31
F.3d 497, 500 (7th Cir. 1994)). “At a minimum, the Title VII
claim must arise from ‘the administrative investigation that can
reasonably be expected to follow the charge of discrimination.’”
Park, 71 F.3d at 907. The defendant has the burden of proving by
a preponderance of the evidence that plaintiff failed to exhaust
administrative remedies. Tridico v. D.C., 130 F. Supp. 3d 17, 23
(D.D.C. 2015) (citing Na’im v. Rice, 577 F. Supp. 2d 361, 370
(D.D.C. 2008)) (other citations omitted).
The purpose of the administrative charge requirement is to
give the charged party notice of all claims and to focus the
issues for “prompt adjudication and decision.” Park, 71 F.3d at
907 (quoting Laffey v. Northwest Airlines, Inc., 567 F.2d 429,
472 (D.C. Cir. 1976)). Although not a “mere technicality,” the
administrative charge requirement is not intended to place a
“heavy technical burden on individuals untrained in negotiating
procedural labyrinths.” Id. (internal quotation and citation
omitted).
In this case, Ms. Britt’s Amended 2013 EEOC Charge of
Discrimination checks the race, religion and retaliation boxes.
Britt’s 2013 EEOC Charge, ECF No. 9-76. The charge further
states:
On November 1, 2004, I was hired by the
respondent to work as an Administrative
Assistant in the Portfolio Department. On
16
February 28, 2012, while being employed as a
Project Analyst II in the Records Management
Department, Jaclyn Myers, the White Managing
Director of my department, harassed me and
other employees (mostly Black) by subjecting
us to verbal abuse (e.g., yelling and
screaming) during a meeting. In approximately
April of 2012, I complained to various
management employees in the HR, Investigations
and Ethics departments about this racial
harassment. Thereafter, from April 2012 to
October 2012, in retaliation for this
protected activity and due to my race, I was
adversely treated in various ways such as by
being denied training, being stripped of job
duties and being excluded from job-related
meetings. Finally, on October 23, 2012, I was
further retaliated against and discriminated
against based upon my race being discharged
from employment.
I believe that I was discriminated against
based upon my race, Multi-Racial
(Black/White/Native American), and retaliated
against for having engaged in protected
activity in violation of Title VII of the
Civil Rights Act of 1964, as amended.
I further state that on July 18, 2012, I was
discriminated against based upon my religion
(Muslim) by being denied a reasonable
accommodation (i.e., a change in my working
hours from 9:00 a.m. to 6:00 p.m. to 7:30 a.m.
to 4:00 p.m.). I requested this accommodation
in order to facilitate my participation in
evening prayer at my home with my family
during Ramadan which extended from July 20,
2012 to August 20, 2012. Additionally, I
believe I that I was denied this accommodation
in retaliation for my previous racial
harassment complaints that I lodged in
approximately April of 2012.
Furthermore, on July 18, 2012, in retaliation
for my previous harassment complaints and
based on my religion, Erica Wilson, the
Managing Director, harassed me by more
17
strictly monitoring my attendance (i.e., by
requiring me to notify her each work day via
email when I report to work in the morning and
when I leave work for the day). Non-Muslim co-
workers were not subjected to this treatment.
I believe that I have been discriminated
against based upon my religion, Muslim, and
retaliated against for having previously
engaged in protected activity in April of 2012
in violation of Title VII of the Civil Rights
Act of 1964, as amended.
Id.
Defendant claims that “[i]ndeed, the charge never even
states that Britt ever raised a complaint about religious
discrimination, let alone that she was supposedly punished for
it.” Def.’s Mem. Supp. at 15. This assertion is without merit.
In addition to checking the boxes for discrimination based on
race, religion and retaliation, Ms. Britt explicitly states that
she “was discriminated against based upon my religion (Muslim)”
and that she was harassed by Manager Erica Wilson “in
retaliation for my previous harassment complaints and based on
my religion . . . .” Id. Although Ms. Britt fails to
specifically allege that her July 20, 2012 performance defense
memo was a protest against religious discrimination and that she
was retaliated against because of it, the facts she does allege
are sufficient for the Court to conclude that Ms. Britt properly
exhausted her administrative remedies because in addition to
explicitly alleging a religious discrimination and retaliation
18
claim, the “overall scope” of Ms. Britt’s EEOC charge was
sufficient to trigger an investigation into whether she suffered
an adverse action because of her religion. See e.g. Tridico, 130
F. Supp. at 24 (holding that Plaintiff stated a discrimination
claim despite not including a “discrimination” heading in EEOC
complaint because the facts included in EEOC complaint were
“sufficient to trigger an investigation into whether plaintiff
suffered an adverse action because of his religion.”)
The cases cited by Defendant support this conclusion. For
example, Fannie Mae relies on Kerney v. Mountain States Health
Alliance for the proposition that Ms. Britt did not provide
adequate notice of her religious retaliation claim. 894 F. Supp.
2d 776 (W.D. Va. 2012); Def. Mot. ¶¶ 15. Yet, the plaintiff’s
retaliation claim in Kerney failed because her EEOC charge did
not “reasonably lead to the inference that she claimed
retaliation,” making no mention of her engaging in a protected
activity for which she was subsequently terminated. Kerney, 894
F. Supp. 2d at 781. Unlike the plaintiff in Kerney, Ms. Britt
made a specific reference to retaliation as a result of her
alleged protected activity on July 18, 2012. Britt’s 2013 EEOC
Charge (“Furthermore, on July 18, 2012, in retaliation for my
previous harassment complaints and based on my religion, Erica
Wilson, the Managing Director, harassed me by more strictly
monitoring my attendance”). For these reasons, Ms. Britt
19
properly exhausted her administrative remedies as to her
religious retaliation claim.
B. Ms. Rush’s DCHRA claims are time barred
Fannie Mae argues that Ms. Rush’s DCHRA claims are time
barred because although Ms. Rush filed her online complaint with
the D.C. Office of Human Rights within one year of her
termination, she failed to assert a religious retaliation claim
in that complaint, which is now the sole claim briefed by Ms.
Rush. Def.’s Rush Mem. Supp. at 24. Ms. Rush maintains that she
was not required to give notice of her religious retaliation
claim. Rush Mem. Opp., ECF No. 14 at 3.
DCHRA claims must be filed “within one year of the
allegedly unlawful incident’s occurrence or discovery thereof.”
Craig v. District of Columbia, 74 F. Supp. 3d 349, 366 (D.D.C.
2014) (citing Ellis v. Georgetown Univ. Hosp., 631 F. Supp. 2d
71, 77 (D.D.C. 2009); see also D.C. Code § 2-1403. This one-year
statute of limitations is tolled upon the timely filing of a
complaint with the D.C. Office of Human Rights (“OHR”) and
charges filed with the EEOC in D.C. are automatically cross-
filed with the D.C. Office of Human Rights. Craig, 74 F. Supp.
3d at 366 (“filing a charge with the EEOC suffices to toll the
one-year statute of limitations for DCHRA claims.”).
In this case, Ms. Rush was terminated on August 28, 2012
and Ms. Rush’s counsel filed an online complaint with the D.C.
20
Office of Human Rights on August 27, 2013, within one year of
her termination. Rush’s August 27, 2013 email to OHR, ECF No.
14, Ex. 45. Neither party attaches the actual OHR complaint, but
both submit an email from Ms. Rush’s attorney to the OHR
summarizing her claims. Id. Approximately one month later, Ms.
Rush filed her notarized EEOC complaint. Rush’s 2013 EEOC
Charge, ECF No. 9-74. Fannie Mae does not challenge the
timeliness of Ms. Rush’s OHR complaint. See D.C. Reg. 4-705.2.1
(“Although the date of the online filing will constitute the
filling date for the complaint, the finalized complaint shall be
signed and verified before a notary public or other person duly
authorized to administer oaths and take acknowledgements.”).
Pursuant to D.C. Code § 2-1403.16(a), a plaintiff must
choose to pursue his or her DCHRA claims through an
administrative process or through a judicial forum. Adams v.
District of Columbia, 740 F. Supp. 2d 173, 190 (D.D.C. 2010)
(citing Carter v. Dist. of Columbia¸980 A.2d 1217, 1223 (D.C.
2009) (explaining that “[t]he jurisdiction of the court and OHR
are mutually exclusive in the first instance.”). 7 Where a
7 D.C. Code § 2-1403.16(a) states:
Any person claiming to be aggrieved by an
unlawful discriminatory practice shall have a
cause of action in any court of competent
jurisdiction for damages and such other
remedies as may be appropriate, unless such
person has filed a complaint hereunder;
21
plaintiff has filed a charge with the DCOHR, as Ms. Rush did in
this matter, a suit may still be filed in Court so long as the
plaintiff withdraws the DCOHR complaint or DCOHR dismisses the
complaint for “administrative convenience.” D.C. Code § 2-
1403.16(a). Fannie Mae does not dispute that Ms. Rush properly
withdrew her OHR charge on December 5, 2014. See Rush Mem. Opp.
at 3, citing Rush’s Administrative Dismissal without Prejudice
letter, Ex. 43.
Nevertheless, as in the Title VII context, “it is only
logical to limit the permissible scope of the civil action [in a
DCHRA case] to the scope of the EEOC investigation which can
reasonably be expected to grow out of the charge of
discrimination.” Craig v. District of Columbia, 74 F. Supp. 3d
349, 366 (D.D.C. 2014) (quoting Ivey v. District of Columbia,
949 A.2d 607, 615 (D.C. 2008)). Therefore, the same “like or
reasonably related” test is applied to determine whether a
plaintiff’s OHR complaint gave proper notice of all claims to
all defendants. Id.
provided, that where the Office has dismissed
such complaint on the grounds of
administrative convenience, or where the
complainant has withdrawn a complaint, such
person shall maintain all rights to bring suit
as if no complaint had been filed.
22
In response to Fannie Mae’s argument that Ms. Rush failed
to give notice of her religious retaliation claim, Ms. Rush
first contends that D.C. Code § 2-1403.16(a) “clearly means that
a defendant is not entitled to any sort of pre-lawsuit
notification as to the particulars of a plaintiff’s claims . . .
.” Rush’s Mem. Opp. at 4. Ms. Rush points to the statutory
language that states “where . . . [t]he complainant has
withdrawn a complaint, such person shall maintain all rights to
bring suit as if no complaint had been filed . . .” (emphasis in
original). Ms. Rush cites to no other authority in support of
her argument.
Considering the full context of the statutory language at
issue, it is clear that the purpose of the language highlighted
by Ms. Rush is to emphasize that where an OHR complaint is
withdrawn or dismissed on administrative grounds, a plaintiff
may pursue his or her claims in a judicial forum. See e.g. Adams
v. District of Columbia, 740 F. Supp. 2d 173, 190 (D.D.C. 2010)
(“In order to successfully withdraw a complaint before the
DCOHR, and thus, preserve the right to bring the same claim in
court, a complainant must request withdrawal prior to the
completion of the [DCOHR’s] investigation and findings.”)
(citing D.C. Code § 2-1403.04) (internal quotation marks
omitted) (emphasis added).
23
Next Ms. Rush maintains that even if Title VII “like or
related” principles are applied to her DCHRA claims, she “easily
meets the requirement of timely exhausting her administrative
remedies, since she filed a letter with the OHR alleging that
she was fired because of the July 2012 memo, which was later
updated and verified by a charge asserting retaliation, and
informing the OHR investigator of Britt’s religious request and
its denial.” Rush’s Mem. Opp. at 4, n 5. However, the record
does not support Ms. Rush’s claim. 8
Neither the email submitted by Ms. Rush’s counsel
summarizing her claims, nor the text of her EEOC complaint
mention a religious retaliation claim. The email sent to OHR by
Ms. Rush’s counsel states in relevant part:
9. On or around July 20, 2012, Ms. Britt
protested improper performance expectations
placed on her in writing, coupled with a lack
of training to assist [sic] meet her new
obligations. Ms. Rush helped Ms. Britt write
the protest.
10. Shortly thereafter, Ms. Myers deputy,
Erica Wilson, commented to Rush, in a
threatening tone, “I know your writing” in
relation to Ms. Rush’s assisting Ms. Britt
with her written work. Upon information and
belief, Ms. Wilson was referring specifically
to Ms. Britt’s protest.
8 To the extent a supplemental letter not analyzed in this
opinion was submitted to the OHR by Ms. Rush, she failed to
submit that letter to the Court for review.
24
Rush’s August 27, 2013 email to OHR, ECF No. 14, Ex. 45
(emphasis added). Ms. Rush’s EEOC complaint checks the race,
religion and retaliation boxes. Rush’s 2013 EEOC Charge, ECF No.
9-74. In relevant part, Ms. Rush charged:
Retaliation (Race-African American) in March
2012 I was questioned about a co-worker’s
(African American) internal discrimination
complaint and in response I expressed that my
supervisor’s supervisor routinely used an
offensive and harsh tone in an effort to
embarrass African American employees.
Discharge (race-African American/Family
Responsibilities/Retaliation) on August 28,
2012 was discharged based on time and
attendance. Even though I had requested to be
allowed to come in to work at 10:00am my
request was denied. I had trouble getting to
work at the requested 9:45am time frame due to
my family responsibilities. I believe I was
terminated due to my race (African American),
my family responsibilities and in retaliation
for my participation in my co-workers internal
EEO complaint.
Id.
Neither Ms. Rush’s EEOC charge nor her counsel’s email to
OHR mention a religious retaliation claim. Ms. Rush’s EEOC
charge does not even mention the July 2012 memo that she helped
Ms. Britt draft. Id. 9 While the email sent to DCOHR by Ms. Rush’s
9 Although Ms. Rush’s EEOC charge states “I believe I was
terminated due to my race (African American) . . . in
retaliation for my participation in my co-workers internal EEO
complaint” the EEO charge mentioned appears to refer to Ms.
Britt’s complaint of racial discrimination which is mentioned
earlier in the charge, not Ms. Britt’s July 2012 memo that she
now claims was a protest against religious discrimination.
Rush’s 2013 EEOC Charge, ECF No. 9-74.
25
counsel mentions the assistance Ms. Rush provided Ms. Britt in
drafting the July 2012 memo, the purpose of the memo is
described as a protest of “improper performance expectations
placed on [Ms. Britt] in writing, coupled with a lack of
training.” Rush’s August 27, 2013 email to OHR, ECF No. 14, Ex.
45. Because Ms. Rush makes no allegation of religious
retaliation and does not assert that the July 2012 memo was a
protest against religious discrimination, no reasonable
investigation into the facts alleged would have put Fannie Mae
on notice of Ms. Rush’s religious retaliation claim. See e.g.
Craig, 74 F. Supp. 3d at 368 (dismissing DCHRA claim for failure
to give notice of alleged perpetrator of the uncharged acts);
Zelaya v. UNICCO Service Co., 587 F. Supp. 2d 277, 285 (D.D.C.
2008) (same). 10 Ms. Rush has therefore did not provide Fannie Mae
with proper notice of her alleged religious retaliation claim.
C. Ms. Britt’s Religious Discrimination Retaliation Claim
Fannie Mae argues Ms. Britt has failed to demonstrate a
genuine issue of material fact as to her religious retaliation
10Even if the court were to find that Ms. Rush gave proper
notice to Fannie Mae for her religious retaliation claim under
the DCHRA, Ms. Rush’s claim fails for substantially the same
reasons Ms. Britt’s claim fails. Ms. Rush’s theory of religious
retaliation relies on the flawed proposition that Ms. Britt’s
performance defense letter constituted a legally protected
complaint of religious discrimination. Rush Mem. Opp., ECF No.
14-2 at 8-9. This assertion fails for the same reasons Ms.
Britt’s religious retaliation claim fails, as discussed below.
26
claims under Title VII and the DCHRA. See generally, Def.’s Mem.
Supp, ECF No. 7 and Def.’s Reply, ECF No. 15. Fannie Mae urges
the Court to grant its motion and dismiss Ms. Britt’s
retaliation claim because she: (1) did not engage in any
protected activity; (2) her termination was unconnected to any
protected activity; and (3) she failed to demonstrate
discriminatory pretext. Def.’s Mem. Supp. at 18-30. Ms. Britt
maintains that she engaged in protected activity and insists
questions of fact remain for a jury to consider when determining
whether her termination was pretextual. Pl.’s Mem. Opp., ECF No.
14.
1. Legal Standard for consideration of Religious
Retaliation claim under Title VII and DCHRA
Under Title VII, it is unlawful for an employer to
discriminate against employees “because he has opposed any
practice made an unlawful employment practice by this
subchapter, or because he has made a charge, testified,
assisted, or participated in any manner in an investigation,
proceeding or hearing under this subchapter.” 42 U.S.C. § 2000e-
3(a). To prevail on a retaliation claim, the plaintiff must show
“(1) that he engaged in a statutorily protected activity; (2)
that he suffered materially adverse action by employer and that
(3) his protected activity was the but-for cause of the . . .
adverse action by the employer.” Frances v. Perez, 970 F.
27
Supp.2d 48, 66 (D.D.C. 2013) (citing Univ. of Texas Sw. Med.
Ctr. v. Nassar, 133 S. Ct. 2517, 2534 (2013). 11
The McDonnell Douglas burden-shifting framework applies to
retaliation claims and requires that a plaintiff first make a
prima facie case of retaliation by presenting credible facts.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817,
36 L. Ed. 2d 668 (1973); Abdelkarim v. Tomlinson, 605 F. Supp.
2d 116, 120-21 (D.D.C. 2009). Once a prima facie case has been
made, the burden shifts to the defendant to rebut the
presumption of discrimination by “producing evidence that the
adverse employment actions were taken for a legitimate,
nondiscriminatory reason.” Id. Finally, if the rebuttal is
successful, the burden shifts back to the plaintiff to show that
the employer’s nondiscriminatory reason was pretext. Id.
However, where the defendant asserts a legitimate, non-
retaliatory explanation for the alleged adverse actions, “the
district court should . . . proceed[] to the ultimate issue of
11The Court’s analysis of Ms. Britt’s Title VII retaliation
claim applies equally to her retaliation claim under DCHRA. See
Kennedy v. Nat'l R.R. Passenger Corp., 139 F. Supp. 3d 48, 58
n.3 (D.D.C. 2015) (“The same analysis applies to the plaintiff's
claims under both Title VII and the DCHRA and these claims thus
rise and fall together.”) Burley, 801 F.3d at 296, 2015 WL
5474078, at *3; See also Bryant v. District of Columbia, 102
A.3d 264, 268 (D.C.2014) (“[t]he analytical framework for
establishing a prima facie case of retaliation is the same under
both the DCHRA and Title VII”).
28
retaliation vel non instead of evaluating whether [plaintiff]
made out a prima facie case.” Jones v. Bernanke, 557 F.3d 670,
678 (D.C. Cir. 2009) (citing United States Postal Service Bd. Of
Governors v. Aikens, 460 U.S. 711, 716 (1983) (holding that once
an employer asserts a legitimate, nondiscriminatory reason for
its action, it “has done everything that would be required . . .
if the plaintiff had properly made out a prima facie case,” so
“whether the plaintiff really did so is no longer relevant.”)).
In this case, the parties do not dispute that Ms. Britt’s
October 2012 termination constitutes an adverse employment
action. Fannie Mae maintains that Ms. Britt’s termination was
due to poor performance. Def.’s Reply Mem. at 17-18. As such,
the central question before the Court is whether Ms. Britt has
presented evidence that “creates a material dispute on the
ultimate issue of retaliation either directly by [showing] that
a discriminatory reason more likely motivated the employer or
indirectly by showing that the employer’s proffered explanation
is unworthy of credence.” Francis, 970 F. Supp. 2d at 66 (quoting
Aikens, 460 U.S. at 716) (internal quotations omitted). Put
another way, the Court must consider:
Whether the jury could infer discrimination
from the combination of (1) the plaintiff’s
prima facie case; (2) any evidence the
plaintiff presents to attack the employer’s
proffered explanation for its actions; and (3)
any further evidence of discrimination that
may be available to the plaintiff (such as
29
independent evidence of discriminatory
statements or attitudes on the part of the
employer) . . .
Waterhouse v. D.C., 298 F.3d 989, 993 (D.C. Cir. 2002)
(internal quotations omitted).
2. Ms. Britt has failed to produce sufficient evidence
of retaliation vel non
Ms. Britt has failed to produce sufficient circumstantial
evidence which a reasonable jury could rely upon to conclude
that Ms. Britt was terminated in retaliation for protests
against religious discrimination. Ms. Britt’s claim of unlawful
retaliation is based on her view that she engaged in protected
activity when she orally expressed disappointment to Ms. Trask
about the denial of her Ramadan request and through her July 20,
2012 written letter in defense of her performance, which was
given to Ms. Wilson at her mid-year 2012 review. Pl.’s Mem. Opp.
at 10. Ms. Britt argues that Ms. Wilson was so angered by Ms.
Britt’s July 20, 2012 letter that she soon thereafter reassigned
Ms. Britt’s duties to other employees, and within three months,
terminated Ms. Britt in retaliation for expressing her belief
that she was being discriminated against because she was Muslim.
Id. at 14. There are several critical pieces of evidence relied
up on by Ms. Britt that deserve close scrutiny. These include:
(1) facts surrounding Ms. Britt’s request for modified hours
during Ramadan; (2) the email from Ms. Trask to Ms. Wilson, Ms.
30
Myers and Ms. Gaither summarizing Ms. Trask’s July 19, 2012
conversation with Ms. Trask; (3) Ms. Britt’s letter of defense;
and (4) the credibility of Fannie Mae’s non-discriminatory
rationale for termination. Each will be discussed in turn.
a. Facts surrounding Ms. Britt’s request for
modified hours during Ramadan
Ms. Britt argues that it is “undisputed that Wilson
rejected [her] request . . .” for no other reason other than
“Wilson’s anti-Muslim animus.” Pl.’s Mem. Opp. at 9-10. However,
the record evidence, including Ms. Britt’s own testimony,
contradicts this assertion. Prior to submitting a formal
request, Ms. Britt testified that she spoke to Ms. Wilson in
June 2012 about her request to modify her hours. Britt Arb. Tr.,
ECF No. 9-3 at 67. Ms. Wilson responded that modifying Ms.
Britt’s hours “would be no problem.” Id.; see also 814: 11-13.
Later, MS. Wilson’s superiors informed her that Ms. Britt’s
request should be submitted to Ms. Stevens, Fannie Mae’s
Workplace Accommodations coordinator. Def.’s Statement Facts ¶
117.
In accordance with Ms. Wilson’s instruction, Ms. Britt
submitted her formal request for modified hours to Ms. Stevens
on July 11, 2012. Britt-Stevens email exchange, ECF No. 9-58.
After receiving documentation from Ms. Britt about Ramadan, Ms.
Stevens denied Ms. Britt’s request because she failed to provide
31
“any information that indicates that your request for
accommodation (earlier hours) is based on your sincerely held
religious belief as opposed to a convenience for yourself.” Id.
Despite this formal denial, Ms. Wilson confirmed that she
possessed the managerial discretion to override HR’s denial and
grant Ms. Britt’s request for modified hours during Ramadan.
Def.’s Statement Facts ¶ 121. Although discouraged by HR, Ms.
Wilson granted Ms. Britt’s request, albeit modified by one hour
from her original request (from 8:30 a.m. to 5:00 p.m. rather
than Britt’s requested hours of 7:30 a.m. to 4:00 p.m.). Wilson-
Britt email, ECF No. 9-61. The one condition Ms. Wilson placed
on this accommodation, as recommended by Ms. Gaither, was that
Ms. Britt send Ms. Wilson an email when she arrived and departed
work and when she would be away from her desk for significant
periods of time during the day. Id.; Def.’s Statement of Facts ¶
122.
Offended by this requirement, Ms. Britt responded “[m]y
getting to work on time or working a full day has never been an
issue. Why am I being made to report in like this? That suggest
[sic] lack of trust.” Wilson-Britt email, ECF No. 9-61. Ms.
Wilson replied “[g]iven your inability to independently complete
project tasks (i.e. Out on Reference, Offsite Storage Dashboard,
etc.) this is one of the conditions I am requiring. There is not
32
a “lack of trust” rather a performance concern which we have
previously discussed. Happy to discuss further.” Id.
In direct contradiction of these facts, Ms. Britt contends
throughout her brief that Ms. Wilson “denied” her request for
modified hours and that she was “required to report her arrival
and departure from work and movements around the office” because
she made the request, rather than as a condition of the request
being granted. Pl.’s Mem. Opp. at 9. As Britt argues:
Wilson admits telling Britt that the only
reason for this new and unprecedented
requirement, was that Britt had requested the
Ramadan hours accommodation. It is
unsurprising that when Wilson failed to
provide a reasonable answer, Britt would
understand that Wilson’s denial of religious
accommodations that should have been afforded,
was for no reason other than Wilson’s anti-
Muslim animus.
Id. at 9-10. The record demonstrates that the reporting
requirement was a condition placed on Ms. Britt’s modified hours
due to Ms. Gaither’s concern that Ms. Britt normally arrived to
work between 9:00 a.m. and 9:30 a.m. and had already received an
Memorandum of Concern related to time and attendance. Def.’s
Statement Fact ¶ 122.
Ms. Britt’s effort to portray Ms. Wilson as possessing an
anti-Muslim animus fails. Ms. Britt does not allege that Ms.
Wilson expressed her anti-Muslim animus in any other way beyond
allegedly denying her Ramadan accommodation. Contrary to Ms.
33
Britt’s assertions, the record evidence shows that Ms. Wilson
exercised her discretion, against the advice of HR, to
accommodate Ms. Britt’s request for modified hours during
Ramadan. As such, Ms. Britt has failed to identify facts
sufficient for a reasonable juror to conclude that Ms. Wilson’s
desire to retaliate against Ms. Britt was the “but for” cause of
Ms. Britt’s termination. Univ. of Texas Sw. Med. Ctr. v. Nassar,
133 S. Ct. 2517, 2533, 186 L. Ed. 2d 503 (2013) (holding that
“Title VII retaliation claims must be proved according to
traditional principles of but-for causation” which requires
“proof that the unlawful retaliation would not have occurred in
the absence of the alleged wrongful action or actions of the
employer.”).
b. Ms. Trask’s July 19, 2012 email summary does not
support Ms. Britt’s claim that she engaged in
protected activity
Ms. Britt argues that her oral expression of frustration to
Ms. Trask about her modified hours’ request constitutes
protected activity (i.e. opposing religious discrimination).
Pl.’s Mem. Opp. at 10. On July 19, 2012, Ms. Trask sent an email
summarizing her conversation with Ms. Britt to Ms. Wilson, Ms.
Myers and Ms. Gaither. Trask Summ. Email, ECF No. 14-15. The
email summarizes eighteen points and all but two pertain to Ms.
Britt’s performance. Id. The two points that do not directly
pertain to Ms. Britt’s performance relate to what Ms. Britt
34
alleges was her “unfair treatment” as a result of her Ramadan
request. Id. As summarized by Ms. Trask:
16. She [Ms. Britt] cannot go through Ramadan
with this unfair treatment and issues.
17. It was not fair she was unable to change
her hours due to Ramadan and unfair about
being told she cannot work independently ---
Erica told her this on 7/18 and she was not
feeling well at the time and she is not feeling
well now.
Id. Notably, Ms. Trask’s email summary does not express the
sentiment that Ms. Britt felt discriminated against because she
is Muslim or because of her Ramadan request. Id. Rather, the
email summary indicates that Ms. Britt was upset by her
supervisors’ concern about her ability to arrive to work in a
timely fashion and complete tasks independently. Id.
c. Ms. Britt’s performance defense letter does not
support Ms. Britt’s claim that she engaged in
protected activity
Ms. Britt argues that her July 20, 2012 performance defense
letter also constitutes a protest of protected activity. Pl.’s
Mem. Opp. at 12. Ms. Britt contends that she:
[r]easonably believed that the denial of her
Ramadan schedule change was an unlawful
failure to accommodate. Britt——through Rush——
opposed the practice of not providing her with
an accommodation by attacking the bogus
foundation for not accommodating her——the
alleged performance shortcoming.
Id. Fannie Mae argues that Ms. Britt’s performance defense
letter does not constitute a protest of protected activity
35
because “ambiguous complaints that do not make the employer
aware of alleged discriminatory misconduct do not constitute
protected activity.” Def.’s Reply Mem. at 7 (citing Chandamuri
v. Georgetown Univ., 274 F. Supp. 2d 71, 84 (D.D.C. 2003).
The facts surrounding the development and content of Ms.
Britt’s protest letter do not provide a basis for any reasonable
juror to conclude that the letter was written as a protest of
protected activity. First, Ms. Britt’s performance defense
letter does not specifically mention Ramadan or religious
discrimination. Britt Defense Letter, ECF No. 9-65. Rather, Ms.
Britt emphasizes the reporting requirement that she asserts was
placed on her because she made the Ramadan request (rather than
a condition of her request being granted). In short, Ms. Britt’s
claim that her performance defense letter constitutes protected
activity is not supported by the text of July 20, 2012 memo
because the memo does not allege that she was discriminated
against because she was Muslim, or even because she made a
request for modified hours during Ramadan.
Second, Ms. Britt acknowledges that she began working with
Ms. Rush to draft her letter of defense several months before
her July 2012 mid-year review. Pl.’s Mem. Opp. at 14 (“Defendant
[] points to Britt’s testimony that the letter took several
months to craft, and that Britt omitted direct references to
Ramadan in the letter. But so what?”). The earliest Ms. Britt
36
raised her Ramadan request with Ms. Wilson was in June 2012.
Britt Arb Test., ECF No. 9-3 at 67, 814: 11-13. This means that
Ms. Britt was well aware of specific concerns with her
performance before she made her religious accommodation request.
Indeed, Ms. Britt was concerned enough about her negative
performance reviews to request help from Ms. Rush in drafting a
letter to defend her performance months before she made her
Ramadan request. Consistent with these facts, the vast majority
of Ms. Britt’s letter focuses on her concern about a lack of
training and unreasonable expectations:
This letter is to express my deep concern
about performance expectations that have been
put upon me during 2012. [] I attempted to
create graphs, etc., but I have never been
trained to produce dashboards and management
reporting and, given my employee level, I feel
strongly that I should not have been expected
to. [] I feel as though I was set up to fail
and did not receive the level of support from
you or my manager needed to complete this
effort.
Id. 1-2. 12 At most, Ms. Britt’s letter of defense communicates a
general complaint of “unfair treatment.” Id. As such, Ms.
12Ms. Britt’s brief includes block quotes of her performance
defense memo with bracketed text that was not included in the
memo. Pl.’s Mem. Opp. at 10. The Court agrees with Fannie Mae’s
argument that “[t]he mere fact that counsel found it necessary
to rewrite the memorandum to include references to Ramadan and
religious discrimination is powerful evidence that no reasonable
reader could be expected to understand the document as a
complaint opposing religious discrimination.” Def.’s Mem. Reply
at 9-10.
37
Britt’s letter does not constitute a protest of protected
activity. Robbins v. Dist. of Columbia, 67 F. Supp. 3d 141
(D.D.C. 2014) (dismissing a Title VII retaliation claim where
letter that Plaintiff claimed was a protest of protected
activity “did not mention race or any other protected status”).
G. Credibility of Fannie Mae’s non-discriminatory
rationale for termination
Fannie Mae argues that Ms. Britt cannot
demonstrate that her termination was pretextual because
undisputed facts document Ms. Britt’s performance deficiencies
months before she made her religious accommodation request.
Def.’s Mem. Supp. at 14-24. Ms. Britt maintains that pretext is
evident from the fact that her duties were stripped from her
shortly after her “on track” July 2012 mid-year review. Pl.’s
Mem. Opp. at 22. 13
Based on the facts in this case, no reasonable juror could
conclude that Ms. Britt’s termination was pretextual. First, the
termination memorandum drafted by Ms. Wilson on October 4, 2012
reviews a comprehensive set of performance deficiencies, and
many of those shortcomings were documented and discussed months
before Ms. Britt’s July 2012 mid-year review. Termination
13At least half of Ms. Britt’s 46 page opposition brief includes
numerous headings relating to pretext. Pl.’s Mem. Opp. at 18-46.
Many of Ms. Britt’s arguments rely on facts alleged that are not
supported by the record, as discussed by the Court supra.
38
Memorandum, ECF No. 9-66. For example, Ms. Britt’s termination
memorandum recounts a June 15, 2012 conversation Ms. Wilson had
with Ms. Britt wherein Ms. Wilson “provided specific examples of
unacceptable behaviors which continued since April that I
observed directly.” Id. at 1. Also, the dashboard assignment was
given to Ms. Britt in early 2012. Def.’s Statement of Facts ¶
100-01. At least three months after being assigned the dashboard
task, Ms. Wilson’s May 30, 2012 handwritten note indicates that
Ms. Britt failed to produce a deliverable product. Wilson Notes,
ECF No. 9-21.
Notably, the two documents that Ms. Britt points to as
protests of protected activity confirm that her performance was
falling short of her superiors’ expectations since early 2012.
Ms. Trask’s July 19, 2012 email summary relays Ms. Britt’s
feeling that she was “not qualified and trained to work on the
new projects, such as the Offsite Storage dashboard and
procedures.” Pl.’s Ex. 11 at ECF No. 14-15. Ms. Britt also
complained that her drafts were to “the best of her abilities,
but they are never good enough for me and Erica/Jaci.” Id.
Similarly, the stated purpose of Ms. Britt’s performance defense
letter was to “express my deep concern about performance
expectations that have been put upon me during 2012.” Britt
Defense Letter, ECF No. 9-65. “I attempted to create graphs,
etc., but I have never been trained to produce dashboards and
39
management reporting and, given my employee level, I feel
strongly that I should not have been expected to.” Id.
Despite this evidence, Ms. Britt argues that her “on track”
rating in July 2012 shows that Ms. Wilson retaliated against her
in anger for presenting her letter of defense. Pl.’s Mem. Opp.
at 14. Ms. Wilson testified that she rated Ms. Britt as “on
track” because she was unsure whether Ms. Britt’s performance
was “blurred by her reporting to [Ms. Trask] and the contentious
relationship or whether it was truly . . . [a] performance issue
. . . .” Id. ¶ 125. 14 Nevertheless, Ms. Wilson gave Ms. Britt the
“strong message” that she was “trending downward” in her
performance. Id. ¶ 128. Consistent with this rationale, Ms.
Wilson worked with Ms. Gaither to draft an individual
development plan (IDP) for Ms. Britt prior to her 2012 mid-year
review. Def.’s Statement Facts ¶ 126. The IDP was designed to
(1) identify gaps in Ms. Britt’s performance, (2) note the
tactical behaviors in need of improvement; (3) identify training
resources; and (4) set target completion dates. Id. ¶ 126.
Because substantial record evidence documents Ms. Britt’s
14 The facts underpinning Ms. Britt and Ms. Trask’s contentious
relationship do not create a triable issue of fact on her religious
retaliation claims because Ms. Britt’s allegations against Ms.
Trask focus on her alleged racial discrimination. Britt’s Final
Arb. Award, ECF No. 6-79 at 3.
40
performance deficiencies, no reasonable juror could agree with
her argument that her termination was pretextual.
D. Ms. Britt concedes her other three claims
Ms. Britt dedicates less than two pages at the end of her
46 page opposition brief to address her religious and racial
discrimination claims and her denial of reasonable religious
accommodation claim. Pl.’s Opp. Mem. at 44-46. Rather than
respond to the specific arguments made by Defendant, Ms. Britt
reiterates the elements of these claims and misstates critical
facts in support of her cursory arguments. Compare Def.’s Mem.
Supp. 30-38 with Pl.’s Mem. Opp. at 44-46. Specifically, Ms.
Britt principally relies on the proposition that “Defendant
would not afford her the [hours modification] accommodation” in
support of these claims. Pl.’s Mem. Opp. at 44-46. As discussed
supra, this assertion is without merit, as Ms. Wilson granted
her religious accommodation request. Wilson-Britt email, ECF No.
9-61. Moreover, it is “well understood in this Circuit that when
a plaintiff files an opposition to a motion . . . addressing
only certain arguments raised by the defendant, a court may
treat those arguments that the plaintiff failed to address as
conceded.” Rodrigues v. Donovan, 922 F. Supp. 2d 11, 15 (D.D.C.
2013) (citing McMillian v. Wash. Met. Area Transit Auth., 898 F.
Supp. 2d 64, 69 (2012). Because Ms. Britt fails to respond to
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the arguments set forth by Defendant, the Court need not examine
Ms. Britt’s remaining claims in detail.
IV. Conclusion
For the reasons discussed above, Defendant’s Motions for
Summary Judgment are GRANTED. An appropriate order accompanies
this Memorandum Opinion.
SO ORDERED.
Emmet G. Sullivan
United States District Court
September 23, 2016
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