                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


                                             )
NAJMAH RASHAD,                               )
                                             )
               Plaintiff,                    )
                                             )
       v.                                    )       Civil Action No. 12-863 (RMC)
                                             )
WASHINGTON METROPOLITAN                      )
AREA TRANSIT AUTHORITY,                      )
                                             )
               Defendant.                    )
                                             )

                                            OPINION

               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 retaliatory 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

                                                 1
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 Fed. R. Civ. P. 12(d).

                                             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 began working an Alternative Work Schedule (AWS), which gave her one day off every

two weeks. She was assigned an AWS day off on alternate Tuesdays.

                 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. Serrian reminded Ms. Rashad of Ms. Serrian’s

recent memo to all staff about the difficulties of coverage under the circumstances and
1
    The Office of General Counsel is referred to as “COUN” by the parties.
2
  Jummah is a Muslim congregational prayer observed every Friday just after noon. See O’Lone
v. Estate of Shabazz, 482 U.S. 342, 345 (1987) (“Jumu’ah is commanded by the Koran and must
be held every Friday after the sun reaches its zenith and before the Asr, or afternoon prayer.”
(citing Koran 62:9-10)). The parties spell Jummah in various ways, and the Court uses the
spelling supplied by Ms. Rashad.
                                                 2
“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.

             ...

                                                   3
          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 leave 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 additional 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 an email that was “both substantively and

                                                  4
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,

                                                 5
               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 James 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



3
   Counsel for Ms. Rashad made this point particularly clear at oral argument. The transcript
reveals the following colloquy:

          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.

                                                6
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 received prior approval for her absence from

work, and did not have enough personal leave to cover the time off, Ms. Serrian formally warned

Ms. Rashad that her absence would be treated as Absence Without Leave (AWOL).4 Id. In the

same memorandum, Ms. Serrian also informed Ms. Rashad that “COUN has granted your

religious accommodation request and is allowing you to leave work every Friday at 12:30 to

attend Jummah. The General Counsel agreed to approve Leave Without Pay (LWOP) for these

Friday absences, but as you have been told, you must use whatever annual leave you have

available before LWOP will be granted.” Id. Ms. Serrian also advised that her memo

constituted a written warning and that further instances of AWOL could result in discipline or

termination. Id.

               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.




4
  Ms. Rashad does not contest these facts, just as neither party contests any of the documents
attached to their briefs. Most of these documents are referenced in the Amended Complaint.
                                                7
               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 an 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. ¶ 4.

               One year later, on June 1, 2012, Ms. Rashad stopped coming to work altogether.

See Def. Mot., Ex. 11 [Dkt. 12-13] (8/7/12 Letter from O’Keeffe to Rashad). As detailed in

5
  As filed, Ms. Rashad’s Complaint alleged that WMATA committed “wrongful acts” when it
required Ms. Rashad to exhaust her personal leave before WMATA would extend LWOP.
Compl. [Dkt. 1] ¶¶ 18-19; see also Am. Compl. [Dkt. 7] ¶ 23. This theory of violation has been
abandoned. Ms. Rashad now combines the May 3, 2011 AWOL warning with statements by
WMATA that her accommodation could impose a burden on OGC as the basis for her claim of
religious discrimination in Count I. See Opp’n at 3.
                                                  8
WMATA’s termination letter of August 17, 2012, whose facts are not disputed by Ms. Rashad,

she failed to provide requested medical records or medical authorization for her lengthy absence

and failed to appear at a scheduled independent medical examination. Def. Mot., Ex. 12 [Dkt.

12-14] (8/17/12 Termination Letter). To the contrary, Ms. Rashad specifically told WMATA on

July 28, 2012, that she was not seeking coverage for her absence under the Family and Medical

Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq., which requires an employee’s cooperation in

demonstrating a family or medical issue for covered leave, see 29 C.F.R. § 825.303.

Termination Letter at 1. Thereafter, when OGC received a letter on August 14, 2012, from Ms.

Rashad’s physician indicating that she suffered from a Panic Disorder and recommending that

she be transferred out of OGC to another WMATA department, Ms. Serrian immediately asked

Ms. Rashad to submit a written “Request for Job Accommodation/Modification” to invoke

WMATA’s process under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et

seq., for reasonable accommodation. Termination Letter at 1-2. Ms. Rashad did not respond

although she acknowledged receipt of the email. Termination Letter at 2. Concluding that Ms.

Rashad had declined to participate in the processes or to provide supporting documentation to

demonstrate rights under either the FMLA or ADA, and that she had therefore been AWOL since

July 3, 2012, the Termination Letter informed her that she had abandoned her position and her

employment was terminated, effective August 17, 2012. Id.

              Ms. Rashad first filed a complaint in federal court on June 4, 2012, see Dkt. 1.

That Complaint claimed religious discrimination and retaliation.6 See Compl. ¶¶ 15, 17, 18. Ms.




6
  The complaint alleges that WMATA’s actions in failing to accommodate her and retaliating
against her violate the settlement agreement in United States v. WMATA, Case No. 08-1661.
United States v. WMATA challenged WMATA’s refusal to accommodate the religious beliefs
that prevented bus operators from wearing the mandated bus uniform. By its terms, the
                                               9
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

some 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

Complaint, each has added exhibits to its briefs. The Court therefore treats the motion as one for

summary judgment. See Fed. R. Civ. P. 12(d) (“If, on a motion under Rule 12(b)(6) or 12(c),

matters outside the pleadings are presented to and not excluded by the court, the motion must be

treated as one for summary judgment under Rule 56.”). While the parties argued the legal

significance of the relevant facts, there is no genuine dispute of material fact between them.7



settlement expired in 2011. The record here demonstrates WMATA’s adherence to the
procedures required by the settlement. In other respects, it is irrelevant to Ms. Rashad’s claims.
7
  Ms. Rashad has argued against summary judgment because she asserts that she presents a prima
facie case and deserves discovery. See Opp’n at 1 (“The issue is not whether the plaintiff will
                                                10
                                    II. LEGAL STANDARD

               Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment shall

be granted “if the movant shows that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); accord Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Talavera v. Shah, 638 F.3d 303, 308 (D.C. Cir.

2011). Moreover, summary judgment is properly granted against a party who “after adequate

time for discovery and upon motion . . . fails to make a showing sufficient to establish the

existence of an element essential to that party’s case, and on which that party will bear the

burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

               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


ultimately prevail, but whether the plaintiff is entitled to offer evidence to support his or her
claims.”). Ms. Rashad contends that she was disciplined for seeking an accommodation and
“disputes that she abandoned her job but [claims that] in any event, the allegations in the
Amended Complaint are treated as true” on a motion to dismiss. Id. at 2, 5. While she contends
that discovery would allow her to develop a record of “other unjustified disciplinary actions,” id.
at 3-4, she offers no specifics. Most importantly, Ms. Rashad no longer contests the facts that
she took a day off without prior approval and with insufficient leave and that she absented
herself from work from June 1 to mid-August 2012 without medical support or participation in
WMATA processes under FMLA or ADA. Her arguments do not preclude summary judgment
because both parties have had the opportunity in briefing and at oral argument “to present all the
material that is pertinent to the motion,” Fed. R. Civ. P. 12(d), and there is no dispute as to the
underlying facts. Additionally, Ms. Rashad’s motion to amend her complaint, relief requested in
her opposition, is denied for these same reasons.


                                                 11
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

for a religious accommodation and when it fired her over one year later. As this suit has

progressed, Ms. Rashad’s theories of liability have shifted. The Court will address them all in an

abundance of caution.8

               A. Count I

               In Count I, Ms. Rashad alleges religious discrimination and retaliation under Title

VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Title VII prohibits discrimination

in employment on the basis of religion. The statute defines religion to include “all aspects of

religious observance and practice, as well as belief, unless an employer demonstrates that he is

unable to reasonably accommodate an employee’s or prospective employee’s religious

observance or practice without undue hardship on the conduct of the employer’s business.” 42

U.S.C. § 2000e(j). It is “an unlawful employment practice . . . for an employer not to make

reasonable accommodations, short of undue hardship, for the religious practices of his employees

and prospective employees.” Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 74 (1977).

Plaintiffs claiming religious discrimination under § 2000e(j) must first make a prima facie
8
  Jurisdiction and venue as to Ms. Rashad’s claims are proper in this Court. See 42 U.S.C.
§ 2000e–5(f)(3) (“Each United States district court . . . shall have jurisdiction of actions brought
under this subchapter. Such an action may be brought in any judicial district in the State in which
the unlawful employment practice is alleged to have been committed . . . .”).

                                                12
showing that “(1) they held a bona fide religious belief conflicting with an employment

requirement; (2) they informed their employers of this belief; and (3) they were disciplined for

failure to comply with the conflicting employment requirement.” Lemmons v. Georgetown Univ.

Hosp., 431 F. Supp. 2d 76, 95 (D.D.C. 2006) (internal quotation marks and citations omitted);

see also Baker v. The Home Depot, 445 F.3d 541, 546 (2d. Cir. 2006) (stating the requirements

for a claim of religious discrimination under § 2000e(j)). If a plaintiff establishes a prima facie

case, the employer must show that it was unable to accommodate the plaintiff’s religious needs

reasonably and without undue hardship. Lemmons, 431 F. Supp. 2d at 95. There is no dispute

that Ms. Rashad held a bona fide religious belief that conflicted with the employment

requirement of working on Friday afternoons and that she informed WMATA of her belief. The

parties disagree over the third element of the prima facie case—whether Ms. Rashad was

disciplined for failure to comply with the conflicting employment requirement.

               In addition to claiming religious discrimination, Ms. Rashad alleges that

WMATA retaliated against her for seeking religious accommodation. Title VII's anti-retaliation

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.” 42 U.S C.

§ 2000e–3(a). To make out a retaliation claim, a plaintiff must show “(1) that he opposed a

practice made unlawful by Title VII; (2) that the employer took a materially adverse action

against him; and (3) that the employer took the action ‘because’ the employee opposed the

practice.” McGrath v. Clinton, 666 F.3d 1377, 1380 (D.C. Cir. 2012). Materially adverse

actions are not limited “to those that are related to employment or occur at the workplace.”

Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006). However, a plaintiff must



                                                 13
show that the employer's actions “would have been materially adverse to a reasonable

employee.” Id. at 71. Further, an “employer's actions must be harmful to the point that they

could well dissuade a reasonable worker from making or supporting a charge of discrimination.”

Id. at 57.

                 When an employer offers a “legitimate, non-discriminatory reason” for its

allegedly materially adverse action, “the sole remaining question” becomes “retaliation 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



9
    The same kind of analysis can also apply to claims of religious discrimination.
                                                  14
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 approach was fully consistent with WMATA policies sent

to her and she acknowledged that she had been granted her requested accommodation, her appeal

was closed. Fifth, Ms. Rashad proposed that she work a variable schedule which would split her

AWS “day” in half, allow her to work longer hours on some days, take every Friday afternoon

off completely, and still not rely on her own vacation time to cover her absences. OGC approved




                                                15
this final proposal, noting that it conflicted with the AWS policy and could burden the office and

reminding Ms. Rashad of her obligation to work the hours set out in her AWS schedule.

               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

42 U.S.C. § 2000e(j); Trans World Airlines, 432 U.S. at 74. It is clear that WMATA engaged in

an extensive interactive process to accommodate Ms. Rashad’s requests and ultimately gave her

the precise accommodation she sought. In fact, Ms. Rashad’s counsel made clear at oral

argument that she does not contend that WMATA failed in this obligation. See Tr. at 30:1-4

(acknowledging that WMATA fully granted Ms. Rashad’s accommodation). When faced with

Ms. Rashad’s request for every Friday afternoon off without returning to work, WMATA had to

consider the challenges facing OGC—understaffing, sick and absent colleagues, and the

demands of the litigation attorneys for whom Ms. Rashad worked. Within these constraining

circumstances, WMATA offered various accommodations. When circumstances changed and

WMATA offered the accommodation Ms. Rashad had originally requested—Friday afternoons

off work with reliance on her own accrued personal time to cover her absences— she realized the

consequences of using her own personal leave to attend Jummah and pursued her amended

request that she be granted LWOP for her Friday afternoon absences. Still, despite its

inconsistency with WMATA AWS policy and Ms. Rashad’s past difficulty with reporting to

work on time and unannounced absences, WMATA ultimately agreed to her final proposal that

she work a variable schedule and “split” her AWS day off into half-days.

               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



                                                16
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

appropriate 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

AWOL warning and other communications from WMATA—used to express the impact of her

absences on OGC—misapprehends the law. As stated above, an employer’s obligation to

accommodate an employee’s religious observances extends only to the point that no “undue

hardship” on its work results. 42 U.S.C. § 2000e(j); see also Ansonia Bd. of Educ. v. Philbrook,

479 U.S. 60, 69 (1986) (employer satisfies Title VII “when it demonstrates it has offered

reasonable accommodation to the employee” and need not offer every possible accommodation).

WMATA’s messages informed Ms. Rashad that her absences constituted a burden but that it was

willing and able to accommodate her religious practices despite the burden. WMATA was well

within its rights to consider any burden imposed by an accommodation request and whether the



                                                 17
burden rose to the level of an undue hardship. See EEOC v. Rent-A-Center, Inc., No. 11-1170,

2013 WL 208948, *4-*6 (D.D.C. Jan. 18, 2013) (concluding that the employer had demonstrated

undue hardship); Rasch v. Nat’l R.R. Passenger Corp., No. 90-0913, 1991 WL 221270, *5-*6

(D.D.C. Oct. 11, 1991) (unpublished) (granting summary judgment because “it would have been

impossible for Amtrak to accommodate [plaintiff’s] religious needs without incurring undue

hardship”). Its reference to a “burden” in communications with Ms. Rashad, therefore, does not

support her claims of discrimination and retaliation.

               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 was absent

from work without permission or an adequate leave balance on April 28, 2011 before she

received the AWOL warning.10 Insofar as the warning addressed these undisputed facts, it

cannot be attributed to her request for a religious accommodation, her desire to attend Friday

Jummah prayers, or her religion. The Court thus finds that the AWOL warning was unrelated to

Ms. Rashad’s request for an accommodation for religious observances and that her admitted

absence dooms an argument that she was “disciplined for failure to comply with the conflicting

employment requirement,” as necessary to make out a claim of religious discrimination. See

Lemmons, 431 F. Supp. 2d at 95. Notably, Ms. Rashad’s religious accommodation involved a

request to absent herself from work on Friday afternoons to attend Jummah and the AWOL

warning involved her failure to appear for work without permission on April 28, 2011, a

Thursday.



10
   Ms. Rashad’s previous statement that she had “sufficient leave” for her April 28, 2011 absence
has been withdrawn. See Am. Compl. ¶ 23. Her counsel now argues that she had only “a little
bit of leave.” Tr. at 24:2. Since Ms. Rashad admittedly had insufficient leave to cover a full-day
absence, which she took without prior notice or approval, the AWOL warning was neither
discriminatory nor retaliatory.
                                                18
               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 language” did not

constitute a materially adverse action). The AWOL warning here merely informed Ms. Rashad

that her absence would be recorded as “without leave” and that additional instances of AWOL

could result in disciplinary action. At oral argument, Ms. Rashad’s counsel complained that Ms.

Rashad had to “fight” for months to achieve an acceptable accommodation and then received a

memo that retaliated against her for even asking. See Tr. at 24:20-25:1 (Plaintiff’s Counsel: “My

client was basically fighting to get the opportunity to take Fridays off so she can attend Friday

prayers. . . . So the reason [the warning] is retaliatory is because after she has just gone about

fighting to get this alternative work schedule and this Friday off, she gets hit with this written

warning.”). The Court cannot agree. Id. 25:6-10 (Court: “The problem with the logic is that she

was actually absent for a day. I mean she wasn’t warned out of the clear blue sky. She actually

just called one day and said I can’t be there. I have personal business and didn’t come to work

and didn’t have enough leave to cover that.”). No reasonable employee would be dissuaded

from exercising protected rights when receiving a warning that addressed only the employee’s

unapproved absence for personal business—and further stated that her request for religious

accommodation had been granted. See Burlington N. & Santa Fe Ry. Co., 548 U.S. at 57




                                                  19
(“[E]mployer's actions must be harmful to the point that they could well dissuade a reasonable

worker from making or supporting a charge of discrimination.”).

               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, No. 10-2056, 2011 WL 2160945, at *4 (D.D.C. June 2, 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.” 42 U.S.C. § 2000e-5(e)(1). Additionally, the claimant’s charge “must be

pending before the agency or the EEOC for at least 180 days, or plaintiff must be notified by the

EEOC of his or her right to sue through the issuance of a right-to-sue letter, and bring suit within

ninety days.” Greggs v. Autism Speaks, Inc., No. 12-1107, 2013 WL 1297223, *3 (D.D.C.

March 20, 2013) (citing, inter alia, 42 U.S.C. §2000e-5(f)(1)); see also Hunter v. District of

Columbia, No. 09-1491, 2012 WL 5974036, *4 (D.D.C. Nov. 29, 2012).
                                                 20
               “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)

(quoting Park v. Howard Univ., 71 F.3d 904, 907 (D.C. Cir. 1995) (alteration in original)). Nat’l

R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002), however, changed that generous

assumption. Morgan specified that an EEO charge “must be filed within the 180– or 300–day

time period after the discrete discriminatory act occurred,” and all discrete discriminatory acts

that occurred prior to this statutory time period were “untimely filed and no longer actionable.”

Id. at 113-14. Morgan specifically noted that “[d]iscrete acts such as termination, failure to

promote, denial of transfer, or refusal to hire are easy to identify. Each incident of

discrimination and each retaliatory adverse employment decision constitutes a separate

actionable ‘unlawful employment practice.’” Id. at 114.

               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)

11
   The D.C. Circuit has identified the divide in authority on this issue but has yet to adopt a
position. See Payne, 619 F.3d at 65 (stating that “[w]e need not decide whether Morgan did in
fact overtake that line of cases,” referring to those “cases that permit[] federal employees to
litigate unfiled claims that are ‘like or reasonably related to’ claims they did file with their
agencies”); see also Weber v. Battista, 494 F.3d 179, 183-84 (D.C. Cir. 2007) (recognizing
contrasting positions taken by federal courts of appeal and concluding that “we need not adopt
either of the foregoing views in order to conclude . . . that [plaintiff] exhausted her administrative
remedies”).
                                                 21
(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, on 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 litigation. See Morgan, 536

U.S. at 114 (identifying “[d]iscrete acts such as termination” as requiring a separate EEO

charge). However, the question is not dispositive here. Ms. Rashad failed to exhaust her

administrative remedies, both (1) because her discharge was a discrete act for which she failed to

file any EEO charge and (2) because it was not “of a like kind to the retaliatory acts alleged in



                                                 22
the [first] EEOC charge” and was not “of an ongoing and continuing nature.” Hazel, 2006 WL

3623693, at *7. Ms. Rashad does not qualify for any narrow reading of Morgan because, as

Payne explained,

               [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.

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 charges 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,




                                                23
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 42 U.S.C. § 2000e-5(e)(1); Whorton v.

WMATA, No. 11-1291, 2013 WL 633046, *7 n.8 (D.D.C. Feb. 21, 2013) (concluding that the

180 day provision of § 2000e-5(e)(1) controls in cases concerning WMATA, which enjoys

sovereign immunity). Summary judgment on Count II will be entered for WMATA.12

                                     IV. CONCLUSION

               For the foregoing reasons, the Court will grant summary judgment to WMATA.

A memorializing Order accompanies this Opinion.



DATE: May 23, 2013

                                                                   /s/
                                                    ROSEMARY M. COLLYER
                                                    United States District Judge




12
  Count II also fails on the merits. The connection between Ms. Rashad’s June complaint and
August termination is insufficient, in the face of admitted evidence of her lengthy absence
without excuse, legal right, or employer authorization, to save her job. WMATA had a
legitimate non-discriminatory reason for Ms. Rashad’s discharge and Ms. Rashad has failed to
offer any evidence which shows that this reason was mere pretext for a retaliatory purpose.

                                               24
