                    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



                               41
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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