United States District Court, District of Columbia
G. Sullivan United States District Court
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,
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.
Ms. Britt's employment at Fannie Mae
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. 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.
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.
Issues with Ms. Britt's performance
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.
Dashboard for Off-site Storage Program
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
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.
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.
Out on Reference Boxes
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.
Iron Mountain Portal
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.
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.
Ms. Britt's Ramadan Request
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. 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
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.
Ms. Britt's 2012 mid-year review
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.
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. ¶
Nevertheless, Ms. Wilson gave Ms. Britt a “strong
message” that she was “trending downward”
in her performance. Id. ¶ 128.
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).
Ms. Britt's termination.
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.
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.
Ms. Rush's employment at Fannie Mae
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. ¶¶
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.
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.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.
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.
Standard of Review
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.
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 ...