Nаjmah RASHAD, Plaintiff, v. WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, Defendant.
Civil Action No. 12-863 (RMC)
United States District Court, District of Columbia.
May 23, 2013.
945 F. Supp. 2d 152
ROSEMARY M. COLLYER, District Judge.
Gerard Joseph Stief, Mark F. Sullivan, Washington Metropolitan Area Transit Authority, Washington, DC, Todd J. Horn, Venable, LLP, Baltimore, MD, for Defendant.
OPINION
ROSEMARY M. COLLYER, District Judge.
Najmah Rashad, a legal secretary at the Washington Metropolitan Area Transit Authority, requested accommodation to attend religious services on Friday afternoons. WMATA initially offered Ms. Rashad different accommodations than she requested, but it was ultimately able to accommodate her fully. Although it agreed to Ms. Rashad‘s final proposal, WMATA stated more than once that the accommodation was granted despite being a burden on the Office of General Counsel and contrary to normal policy. Ms. Rashad filed a charge of discrimination and retaliation because of this message. She filed this lawsuit in June 2012, after completing the administrative process. In August 2012, WMATA terminated Ms. Rashad, and she added a claim of retaliаtory discharge to her complaint.
WMATA has moved to dismiss, arguing that Ms. Rashad failed to state a claim in either count of her amended complaint. After her time for filing a second charge passed, WMATA filed a supplemental motion to dismiss, arguing that Ms. Rashad had failed to exhaust her administrative remedies before filing suit on Count II. Both parties have added exhibits to their briefs in addition to those mentioned in the Amended Complaint and, at oral argument, had no genuine dispute as to the relevant facts but disputed their legal significance. The Court will accordingly treat the motion as one for summary judgment. See
I. FACTS
Najmah Rashad is a resident of Maryland and a citizen of the United States. From January 2008 until August 2012, Ms. Rashad worked as a legal secretary in WMATA‘s Office of the General Counsel (OGC).1 Ms. Rashad is of the Muslim faith. In December 2010, Ms. Rashad be
Wanting to attend the Muslim Jummah Prayer Service2 every Friday, on December 30, 2010, Ms. Rashad asked that her AWS day be changed from Tuesdays to Fridays. Susan Serrian, Manager of Legal Administrative Services, OGC, denied this request on January 12, 2011. See Def. Mot. [Dkt. 12], Ex. 1 [Dkt. 12-3] (1/12/11 Email from Serrian to Rashad). Ms. Serrian explained OGC‘s policy that limited the number of administrative employees allowed off on any given day in order to assure coverage to the Office attorneys. She further explained that Fridays were already assigned to other members of the administrative staff and therefore no additional person could take Friday as an AWS day without compromising the work of the Office, which was understaffed. She also noted that two members of the administrative staff were experiencing medical problems which required recurrent absences, making it even more difficult to ensure secretarial coverage. Ms. Sеrrian reminded Ms. Rashad of Ms. Serrian‘s recent memo to all staff about the difficulties of coverage under the circumstances and “indicating AWS privileges may be suspended in the near future for a period of time due to these medical situations.” Id. In the alternative, Ms. Serrian offered to permit Ms. Rashad to use annual leave if she needed a longer-than-scheduled lunch hour to attend Friday Jummah services and suggested that she could ask a colleague to switch AWS days. She also advised that Ms. Rashad could make a formal Request for Religious Accommodation under WMATA policy. Id.
Ms. Rashad adopted the last piece of advice and filed a Request for Religious Accommodation, asking for a permanent accommodation for “Jummah attendance on Fridays beginning Friday January 28, 2011. 7:00 am start time. Leave at 12:30. Use my personal leave.” Def. Mot., Ex. 2 [Dkt. 12-4] (Request for Religious Accommodation). Asked by Ms. Serrian for clarification, Ms. Rashad explained, “I am requesting to change my work hours on Friday to a start time of 7:00 a.m. and a departure time of 12:30 p.m., utilizing annual leave for the rest of the day.” Def. Mot., Ex. 3 [Dkt. 12-5] (1/21/11 Email from Rashad to Serrian). Thereafter, a lengthy memo from OGC to the WMATA Religious Accommodation Panel explained:
Ms. Rashad is requesting that she be allowed to utilize annual leave every Friday from 12:30 p.m. to the end of her work day so that she can attend the Jumu‘ah congregational prayer. . . .
Ms. Rashad is a Legal Secretary and has been employed in COUN since January 27, 2008. She is responsible for providing litigation and other legal support to 5 COUN attorneys. COUN has four legal secretaries to support 22 attorneys. Currently, one of the secretaries is suffering from a serious medical condition which requires him to be absent 3-5 days per pay period, essentially making him a part-time employee. . . . In addition, COUN‘s Office Manager is also on extended sick leave which is scheduled to last between 8 weeks and five months. . . . Making the situation more complicated is the fact that Ms.
Rashad supports all three of COUN‘s workers’ compensation attorneys [who] . . . typically handle a combined caseload of 300+ cases. . . . Ms. Rashad is also responsible for supporting a civil litigation attorney and a general law attorney. . . .
In her request for religious accommodation, Ms. Rashad indicates that she is willing to arrive at 7:00 a.m., leave at 12:30 p.m., and take “personal” leave every Friday so that she can attend Jumu‘ah. COUN has serious doubts that Ms. Rashad will arrive at 7:00 a.m. and also questions her ability to accrue the annual leave necessary [ ] for her every Friday absence. Within her first year of employment, Ms. Rashad established a pattern of taking unscheduled lеave and regularly arriving late to work. This pattern has continued throughout . . . [She has been counseled and suspended from her prior AWS schedule as a result. And when she asked to begin work at 7:00 a.m., she was consistently late.] Given her past record of late arrivals, it is not reasonable to believe that Ms. Rashad can consistently arrive for work at 7:00 a.m. or that she can accrue the necessary annual leave to cover her proposed Friday absences.
Def. Mot., Ex. 5 [Dkt. 12-7] (1/25/11 Memo from COUN to WMATA Religious Accommodation Panel (misdated 2010)).
By letter dated March 14, 2011, the Religious Accommodation Panel denied Ms. Rashad‘s specific request because of its impact on OGC‘s business operations and suggested alternatives. See Def. Mot., Ex. 6 [Dkt. 12-8] (3/14/11 Letter from Quillen to Rashad). Pursuant to WMATA policy, the Panel had first invited Ms. Rashad to meet with the Panel to discuss her specific request, provide additiоnal information, and discuss whether other accommodations were feasible. However, Ms. Rashad had arrived with legal counsel and “declined to attend the meeting unless he was also allowed to participate.” Id. at 1. The Panel had explained to Ms. Rashad and her lawyer that it offered “an internal, interactive and non-adversarial process, and third parties are not allowed to participate.” Id. at 1-2. In lieu of Ms. Rashad‘s in-person discussion with the Panel, the Panel offered to submit written questions “to allow [Ms. Rashad] to clarify [her] request and in a further attempt to better understand the nature and scope of [her] request.” Id. Ms. Rashad agreed to this course of action. The Panel explained to Ms. Rashad, in the presence of her attorney, that the Panel was seeking her “personal responses.” Id. at 2. Instead, however, Ms. Rashad‘s counsel sent the Panel аn email that was “both substantively and procedurally unacceptable” and replete with legal argument. Id. at 2. On March 4, 2011, the Panel forwarded its questions directly to Ms. Rashad and set a deadline for response. Id. Her response was four days late and did not answer the questions but did offer two variations on her requested accommodation: to use leave without pay (“LWOP“), not personal leave, to cover Friday absences; or to come in earlier and/or work later. After considering these proposals, the Panel determined that:
[T]he requested accommodation would constitute an undue hardship for [WMATA] to the extent that it would create a shortage among qualified staff employees within the Office of General Counsel each Friday afternoon and would therefore require [WMATA] to incur more than de minimus costs. This is the case regardless of whether [Ms. Rashad] attempted to cover the absences by working additional hours outside of [her] regular shift (on Friday and/or on other
days of the week), by using annual leave, or by some combination of these two approaches.
Id. The Panel offered two alternatives. First, it suggested that Ms. Rashad use up to two hours of annual leave each Friday, from 1:30 to 3:30 p.m., in addition to her lunch hour starting at 12:30, to attend Jummah prayers. Second, it suggested that she might report one half-hour early, at 8:00 a.m. each Friday, take leave from 12:30 to 3:30, and return to work until 5:30 p.m., one half-hour later than normal, which would reduce the amount of annual leave needed to cover her time off. Finally, the Panel advised that Ms. Rashad could appeal to, or file a complaint of religious discrimination with, the Director of the Office of Civil Rights. Id.
Before Ms. Rashad filed an appeal or complaint, OGC hired an additional legal secretary. On March 18, 2011, Ms. Serrian informed Ms. Rashad of the new hire and told her that AWS leave would be reinstated—it had been suspended due to understaffing—effective April 11, 2011. As a result, Ms. Serrian advised that
COUN will approve an AWS schedule which allows you to take the first Friday of each pay period off so that you can attend Jumu‘ah. On alternative Fridays, you will be allowed to leave at 12:30, as per your prior request, and utilize appropriate leave for the period of time between the end of your lunch hour and the end of your schedule for the day.
Def. Mot., Ex. 7 [Dkt. 12-9] (3/18/11 Email from Serrian to Rashad). Ms. Serrian also warned Ms. Rashad that her future time and attendance must be consistent with WMATA policies. Ms. Serrian‘s email was sent at 5:26 p.m. Id. Ms. Rashad submitted her appeal by email to the Office of Civil Rights (identified as “CIVR” by the parties) at 5:45 p.m. on the same date. See Def. Mot., Ex. 8 [Dkt. 12-10] (4/22/11 Letter from Wynne to Rashad).
Ms. Rashad met with Jаmes T. Wynne, Jr., Director of WMATA‘s Office of Civil Rights, on April 19, 2011. She frankly acknowledged during that meeting, as she does before this Court, that she had received the accommodation she had requested. Id. at 1 (“During our meeting I asked if you currently have the religious accommodation that you requested. You answered that you do.“).3 Nonetheless, Ms. Rashad “voiced a concern regarding having to use [her] vacation time instead of being allowed to use leave without pay,” saying she could not locate any policy addressing the issue. Id. Mr. Wynne said he would “check into this matter.” Id. After their meeting, he verified WMATA policies in its Personnel Policies and Procedures Manual, sent a copy of the relevant policy to Ms. Rashad, and told her that she “must first use the accumulated leave before you can be granted the leave without pay.” Id. at 2. Since she had received the requested accommodation, Mr. Wynne also told Ms. Rashad that he considered the matter closed. Id.
Ms. Rashad left a voicemail for her supervisor sometime on or shortly before Thursday, April 28, 2011, indicating that she had “some business” to take care of and would not be at work on that date. Pl. Opp‘n [Dkt. 13-1], Ex. A. (5/3/11 Memo from Serrian to Rashad). Because Ms. Rashad had given no prior notice or re
On May 4, 2011, Ms. Rashad responded that leaving work every Friday at 12:30 to attend Jummah “will not work for me, for it will place me in a position of having to exhaust all of my vacation and sick leave in order to be accommodated religiously.” Def. Mot., Ex. 10 [Dkt. 12-12] (5/4/11 Email from Rashad to Serrian). She said she would submit yet a different proposed accommodation to her supervisor, by which she could work 75 hours every two weeks in order to leave every Friday at 12:30 p.m. and still accumulate personal leave. Id.
The next day, May 5, 2011, Ms. Rashad signed a formal Alternative Work Schedule Agreement with WMATA, effective May 9, 2011. The final AWS provided that Ms. Rashad would report to work at 8 a.m. every Monday [one-half hour early] and work аn 8 hour day until 5 p.m.; report to work at 7:30 a.m. every Tuesday-Thursday [one hour early] and work an 8.5 hour day until 5:00 p.m.; and then report to work at 8:30 a.m. [normal time] every Friday and work a 4 hour day until her lunch break at 12:30, at which time she would leave work. Def. Mot., Ex. 9 [Dkt. 12-11] (5/5/11 AWS Agreement). This schedule constituted 37.5 work hours each week, which is a normal workweek for OGC staff. Id. Notably, this schedule permitted Ms. Rashad to split her AWS “day” into two half-days. Ms. Serrian approved this AWS request on May 11, 2011, in an email that also noted that the schedule “conflicts with WMATA‘S AWS policy and may impose a burden on the office,” and reminded Ms. Rashad that she “must maintain a record of reliable attendance and punctuality in order to participate in the AWS program.” Def. Mot., Ex. 10 [Dkt. 12-12] (5/11/11 Email from Serrian to Rashad). Count I of the Amended Complaint is directed to the May 3, 2011 AWOL warning and other communications from WMATA, which Ms. Rashad alleges discriminated against her and retaliated against her by telling her that she could be disciplined and/or fired for not working all hours and that her accommodation was a “burden.”5 She filed her charge on July 21, 2011. Am. Compl. ¶ 14.
One year later, on June 1, 2012, Ms. Rashad stopped coming to work altogether. See Def. Mot., Ex. 11 [Dkt. 12-13]
Ms. Rashad first filed a complaint in federal court on June 4, 2012, see Dkt. 1. That Complaint claimеd religious discrimination and retaliation.6 See Compl. ¶¶ 15, 17, 18. Ms. Rashad filed an Amended Complaint on September 10, 2012, see Dkt. 7. The Amended Complaint slightly revised the same allegations in Count I, see Am. Compl. ¶¶ 20, 22, & 23, and added Count II, claiming retaliatory discharge. Id. ¶ 33 (alleging “the decision to terminate plaintiff was based upon her religion (Muslim) and was done in direct reprisal for engaging in protected activity“). WMATA filed a Motion to Dismiss the Amended Complaint on October 22, 2012, see Dkt. 12, which Ms. Rashad opposed, see Dkt. 13. WMATA filed a Supplemental Motion to Dismiss on April 2, 2013, see Dkt. 15, arguing that the statute of limitations had expired on Ms. Rashad‘s retaliatory discharge claim in February 2012 and she had filed no charge with the EEOC, making its supplemental motion ripe. Ms. Rashad has opposed the supplemental motion as well, see Dkt. 17.
The Court heard oral argument on WMATA‘s motion on April 25, 2013. In the course of that argument, some of Ms. Rashad‘s theories of violation became crystallized and sоme were dropped. See, e.g., Tr. at 20:12-14 (clarifying that Ms. Rashad‘s claims do not concern a failure to accommodate but instead focus on the AWOL warning and her discharge).
Finally, while both parties rely heavily on documents referenced in the Amended
II. LEGAL STANDARD
Under
In ruling on a motion for summary judgment, the court must draw all justifiable inferences in the nonmoving party‘s favor and accept the nonmoving party‘s evidence as true. Anderson, 477 U.S. at 255; Talavera, 638 F.3d at 308. A nonmoving party, however, must establish more than “[t]he mere existence of a scintilla of evidence” in support of its position. Anderson, 477 U.S. at 252. In addition, the nonmoving party may not rely solely on allegations or conclusory statements. Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999). Rather, the nonmoving party must present specific facts that would enable a reasonable jury to find in its favor. Id. If the evidence “is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249-50 (citations omitted).
III. ANALYSIS
Ms. Rashad is of the Muslim faith and wished to absent herself from work every Friday afternoon to attend Jummah congregational prayer. She asked for an accommodation for her religious beliefs and received it, despite its burden on OGC and inconsistency with WMATA policies. Ms. Rashad alleges that WMATA discriminated and retaliated against her for asking
A. Count I
In Count I, Ms. Rashad alleges religious discrimination and retaliation under Title VII of the
In addition to claiming religious discrimination, Ms. Rashad alleges that WMATA retaliated against her for seeking religious accommodation. Title VII‘s antiretaliation provision prohibits an employer from “discriminat[ing] against” an employee because she has “opposed” a practice proscribed by Title VII or because “[s]he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing.”
When an employer offers a “legitimate, non-discriminatory reason” for its allegedly materially adverse action, “the sole remaining question” becomes “retaliatiоn vel non—whether, based on all the evidence, a reasonable jury could conclude that [the] proffered reason . . . was pretext for retaliation.”9 Pardo-Kronemann v. Donovan, 601 F.3d 599, 603-04 (D.C. Cir. 2010) (internal quotation marks and citations omitted); see also McGrath, 666 F.3d at 1380 n. 3 (“[T]he only question is whether the employee‘s evidence creates a material dispute on the ultimate issue of retaliation.” (internal quotation marks and citations omitted)). A plaintiff can show pretext “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.” Jones v. Bernanke, 557 F.3d 670, 678 (D.C. Cir. 2009) (quoting U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 716 (1983)).
The documents cited in the Amended Complaint evidence Ms. Rashad‘s various requests for accommodation and WMATA‘s efforts to design something reasonable for its workplace. First, Ms. Rashad asked to change her AWS day from Tuesdays to Fridays, but WMATA explained that other OGC employees took Fridays as AWS days and her request conflicted with AWS policies and would burden OGC. In the alternative, WMATA suggested that Ms. Rashad use annual leave to extend her lunch hour or ask a colleague to switch days off with her. Second, Ms. Rashad filed a formal Request for Religious Accommodation, asking to start her work days early every Friday and to use personal leave to cover her absences on Friday afternoons without returning to work. Third, Ms. Rashad refused to meet with the Religious Accommodation Panel or, initially, to answer its written questions without legal representation; in this process, she changed her request and asked to be granted LWOP on Friday afternoons, so that she would not exhaust her personal leave, or to be allowed to work earlier and later on other days to cover Friday afternoon absences.
The Panel concluded that these requests would impose an undue hardship on OGC and denied them. It offered the alternatives of taking three hours at lunchtime, using personal leave for two hours after her lunch hour, or reporting earlier and leaving later on Friday, which would require use of only one hour of personal leave (assuming an absence of three hours for Jummah attendance). WMATA then hired an additional legal secretary and restored AWS, which had been suspended. WMATA agreed that Ms. Rashad could work an alternative schedule with every other Friday as her AWS day off and that she could use appropriate leave, first exhausting her personal leave before LWOP, for non-AWS Fridays to attend Jummah congregational prayers.
Fourth, Ms. Rashad appealed the grant of her requested accommodation because she could not find a basis in WMATA policies for requiring her to use up her own personal leave before LWOP. However, because this approaсh was fully consistent with WMATA policies sent to her and she acknowledged that she had been granted her requested accommodation, her
Ms. Rashad does not challenge any of these facts. The law requires an employer to reasonably accommodate an employee‘s religion if it can do so without undue hardship. See
Accordingly, the question raised by Count I is not one of accommodation but instead whether WMATA discriminated or retaliated against Ms. Rashad when it informed her in writing that her absence without leave on April 28, 2011, “results in loss of pay for the absence and can result in further disciplinary action” and that “[d]espite the burden on the office in general and your attorneys in particular, COUN has granted your religious accommodation request and is allowing you to leave work every Friday at 12:30 to attend Jummah” with approрriate leave. 5/3/11 Memo from Serrian to Rashad (“AWOL warning“); see also 5/11/11 Email from Serrian to Rashad (“Although the AWS schedule you have proposed, 3.5 hours off each Friday [with variable hours], conflicts with WMATA‘s AWS policy and may impose a burden on the office, your attorneys and your colleagues due to staffing shortages, it is acceptable to COUN with regard to your request for religious accommodation.“). Ms. Rashad admits that the AWOL warning was not based on her attendance at Friday prayers but argues that it was a disciplinary action and an adverse action that imposed tangible harm by discouraging her from attending Friday prayers. See Opp‘n at 3. Ms. Rashad claims that the warning and statements that her accommodation constituted a “burden” on the OGC made her feel retaliated against. See Am. Compl. ¶ 22; Tr. at 35:1-3. None of these arguments has legal merit.
To begin with, Ms. Rashad‘s complaint about the reference to “burden” in the
Additionally, the AWOL warning arose from Ms. Rashad‘s admitted failure to show up for work without prior approval. Ms. Rashad no longer disputes that she
The AWOL warning also fails to meet the legal standard for a materially adverse action in the context of a retaliation claim. See McGrath, 666 F.3d at 1380 (stating requirement for a “materially adverse action“). The D.C. Circuit has held that a letter of reprimand that “contained no abusive language, but rather job-related constructive criticism” did not constitute a materially adverse action. Baloch v. Kempthorne, 550 F.3d 1191, 1199 (D.C. Cir. 2008); see also Herbert v. Architect of Capitol, 766 F. Supp. 2d 59, 75 (D.D.C. 2011) (concluding that a letter of reprimand “with minimal explication” and “lack[ing] any abusive lаnguage” did not constitute a materially adverse action). The AWOL
Because Ms. Rashad has failed to plead a prima facie case for religious discrimination or retaliation based on the May 3, 2011 AWOL warning and statements that her accommodation would be a “burden” to OGC, summary judgment will be entered for WMATA on Count I.
B. Count II
Count II complains that WMATA retaliated against Ms. Rashad because of her protected activity by terminating her employment on August 17, 2012. WMATA argues that Count II should be dismissed for failure to exhaust administrative remedies. The Court agrees.
A Title VII claimant must exhaust her administrative remedies before bringing her claim to court. Payne v. Salazar, 619 F.3d 56, 65 (D.C. Cir. 2010); see also Bowers v. Dist. of Columbia, 883 F. Supp. 2d 1, 6-7 (D.D.C. 2011) (dismissing a Title VII claim for failure to exhaust). To exhaust her administrative remedies, a complainant must first file a charge with the Equal Employment Opportunity Commission (“EEOC“) “within one hundred and eighty days after the alleged unlawful employment practice occurred” or “within three hundred days after the alleged unlawful employment practice occurred” if the employee first initiated proceedings with a “State or local agency with authority to grant or seek relief from such practice.”
“Historically, a lawsuit based on an EEOC charge generally could include ‘claims that [were] like or reasonably related to the allegations of the charge and growing out of such allegations.‘” Hazel v. WMATA, No. 02-1375, 2006 WL 3623693, at *7 (D.D.C. Dec. 4, 2006) (quot
District judges in this Circuit have not agreed on the implications of Morgan—specifically on the extent to which Morgan requires exhaustion of claims based on discrete discriminatory acts that occurred after the filing of an EEO charge.11 Most judges in this district have held that plaintiffs alleging discrete acts of discrimination or retaliation “must exhaust the administrative process regardless of any relationship that may exist between those discrete claims and any others.” Coleman-Adebayo v. Leavitt, 326 F. Supp. 2d 132, 137-38 (D.D.C. 2004) (PLF); see also Hunter v. District of Columbia, 797 F. Supp. 2d 86, 95 (D.D.C. 2011) (ABJ) (following the “[c]ourts in this district [that] have applied Morgan in holding that a plaintiff must exhaust his administrative remedies with respect to distinct acts that occurred after the filing of an administrative charge“); Taylor v. Mabus, 685 F. Supp. 2d 94, 99 (D.D.C. 2010) (JR) (suggesting in dicta that exhaustion is required for discrete acts of discrimination and retaliation even if such acts are reasonably related to prior exhausted claims); Romero-Ostolaza v. Ridge, 370 F. Supp. 2d 139, 149 (D.D.C. 2005) (RCL) (“Although Morgan bars recovery for, on its facts, discrete acts occurring before the statutory time period, Morgan has, оn the whole, been understood to also bar discrete acts occurring after the time period, after the filing of an administrative complaint, when a plaintiff does not file a new complaint or amend the old complaint but instead presents these acts for the first time in federal court.“). Other judges do not read Morgan to disallow unexhausted claims arising after the filing of a charge: “where the subsequent retaliatory acts [are] of a like kind to the retaliatory acts alleged in the EEOC charge, [and are] specified to be of an ongoing and continuing nature[,]’ separate administrative exhaustion is not required.” Hazel, 2006 WL 3623693, at *7 (RWR) (quoting Wedow v. City of Kansas City, 442 F.3d 661, 674 (8th Cir. 2006)); see also in Lewis v. District of Columbia, 535 F. Supp. 2d 1, 8 (D.D.C. 2008) (RMU) (applying a narrow reading of Morgan, “consistent with this Circuit‘s post-Morgan jurisprudence“).
This Court is of the opinion that discrete acts of discrimination and retaliation require discrete charges and an opportunity for investigation before litiga
[F]or a charge to be regarded as “reasonably related” to a filed charge under that doctrine, it must at a minimum arise from the administrative investigation that can reasonably be expected to follow the charge of discrimination. This connection is necessary to give the agency an opportunity to resolve the claim administratively before the employee files her complaint in district court.
Payne, 619 F.3d at 65 (internal quotation marks and citations omitted). Payne reasoned that plaintiff‘s claim of retaliatory conduct in January 2008 could not possibly have arisen from the administrative investigation of her 2004 EEO chargеs because the administrative investigation of those charges ended in September 2007. Id. Similarly, Ms. Rashad filed this lawsuit in June 2012, after the EEO investigation was ended by her request for a Right To Sue Letter in January 2012, and she was terminated on August 17, 2012. See Def. Supp. Mot. [Dkt. 15], Ex. 2 [Dkt. 15-2] (1/6/12 Letter from Rashad to EEOC Investigator Douglas). Indeed, there was no possibility that the EEOC could have investigated her discharge claim while investigating her first claim. The events complained of took place on May 3, 2011 and August 17, 2012 and were unrelated in time.
The Court further notes that the only connection between the AWOL warning on May 3, 2011, and the discharge on August 17, 2012, is that each was provoked by Ms. Rashad‘s acknowledged failure to come to work to perform her job, despite an absence of leave, permission, or legal coverage. Her protected activity—whether seeking a religious accommodation, filing a charge, or filing a lawsuit—did not insulate her from the common, everyday requirement to show up for work. See Tr. at 26:3-5 (Court: “But you don‘t deny the fact that she did not come to work? Counsel: I can‘t deny that no.“)
The Court concludes that Ms. Rashad failed to exhaust her administrative remedies as to her discharge. Further, because more than 180 days have passed since her termination, her claim has now become time-barred. See
IV. CONCLUSION
For the foregoing reasons, the Court will grant summary judgment to WMATA. A memorializing Order accompanies this Opinion.
ROSEMARY M. COLLYER
UNITED STATES DISTRICT JUDGE
Notes
COURT: The issue is no longer one of accommodation. The issue is only the warning and the discharge?
PLAINTIFF‘S COUNSEL: Correct.
Tr. of Oral Arg. (“Tr.“) 20:12-14.