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Rush v. Federal National Mortgage Association

United States District Court, District of Columbia

September 23, 2016

MICHELLE RUSH and LAWANDA BRITT, Plaintiffs,
v.
FEDERAL NATIONAL MORTGAGE ASSOCIATION, a/k/a Fannie Mae Defendant.

          MEMORANDUM OPINION

          Emmet G. Sullivan United States District Court

         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 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]

         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 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.

         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. ¶ 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 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] 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 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 [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 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 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 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 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 ...


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