Susan Abeles v. Metropolitan Wash. Airport

Filing

UNPUBLISHED AUTHORED OPINION filed. Originating case number: 1:15-cv-00792-CMH-IDD. Copies to all parties and the district court. [1000011050]. [16-1330]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-1330

SUSAN H. ABELES,
Plaintiff – Appellant,
v.
METROPOLITAN WASHINGTON AIRPORTS AUTHORITY,
Defendant – Appellee,
and
JULIA HODGE; VALERIE O'HARA,
Defendants.
--------------------------------------THE AMERICAN JEWISH COMMITTEE; THE NATIONAL JEWISH
COMMISSION ON LAW AND PUBLIC AFFAIRS; THE BECKET FUND FOR
RELIGIOUS LIBERTY,
Amici Supporting Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. Claude M. Hilton, Senior District Judge. (1:15-cv-00792-CMH-IDD)

Argued: December 8, 2016

Decided: January 26, 2017

Before WILKINSON, SHEDD, and DUNCAN, Circuit Judges.

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Affirmed by unpublished opinion. Judge Duncan wrote the opinion, in which Judge
Wilkinson and Judge Shedd joined.

ARGUED: Nathan Lewin, LEWIN & LEWIN, LLP, Washington, D.C., for Appellant.
Bruce P. Heppen, WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY,
Washington, D.C., for Appellee. ON BRIEF: Joseph W. Santini, Morris Kletzkin,
FRIEDLANDER MISLER, PLLC, Washington, D.C., for Appellee. Dennis Rapps, New
York, New York; Meir Katz, MAGEN LEGAL, Baltimore, Maryland, for Amicus The
National Jewish Commission on Law and Public Affairs “COLPA”. Eric C. Rassbach,
THE BECKET FUND FOR RELIGIOUS LIBERTY, Washington, D.C., for Amici The
American Jewish Committee and The Becket Fund for Religious Liberty.

Unpublished opinions are not binding precedent in this circuit.

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DUNCAN, Circuit Judge:
Plaintiff-Appellant Susan H. Abeles sued her employer Metropolitan Washington
Airports Authority (“MWAA” or “Defendant”) and her supervisors, alleging religious
discrimination in violation of Title VII, deprivation of civil rights under 42 U.S.C.
§ 1983, and violations of federal and state religious freedom acts. The district court
granted the individual supervisors’ motions to dismiss but denied MWAA’s motion to
dismiss. After discovery, the district court granted summary judgment to MWAA on all
claims. Plaintiff appeals each of these rulings. For the reasons that follow, we affirm.

I.
A.
Plaintiff, a practicing Orthodox Jew, began working at MWAA in 1987. 1 MWAA
knew Plaintiff’s religious beliefs prohibited her from working on Jewish holidays.
During 2012 and 2013--the relevant time period for this case--Plaintiff reported to
Valerie O’Hara (“O’Hara”), who in turn reported to Julia Hodge (“Hodge”). In her 26
years of working at MWAA, Plaintiff’s supervisors always allowed Plaintiff to leave
early on Fridays so that she could arrive home before sundown to observe the Sabbath in
the winter months. On occasion, MWAA also provided kosher food at staff events in

1

MWAA is a “regional entity” that the Virginia General Assembly and the
District of Columbia City Council, acting pursuant to an interstate compact, jointly
created for the purpose of operating the federally owned Washington-Dulles International
Airport and Ronald Reagan Washington National Airport. Washington-Dulles Transp.,
Ltd. v. Metro. Wash. Airports Auth., 263 F.3d 371, 373 (4th Cir. 2001).
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recognition of Plaintiff’s religious dietary requirements. MWAA--including Plaintiff’s
first-level supervisor, O’Hara--never denied Plaintiff leave to observe a religious holiday
when she requested leave prior to being out of the office.
The instant dispute arises from Plaintiff’s failure to follow MWAA’s formal
procedure for requesting leave. MWAA’s Absence and Leave Program (“Leave Policy”)
specifies that employees must request leave by form or email and receive approval before
taking leave. Plaintiff was aware of the Leave Policy and had seen the document before.
In addition to MWAA’s formal process, the department in which Plaintiff worked
used an informal planning calendar to help determine coverage based on when people
would be in the office. In January 2013, Plaintiff noted on this internal planning calendar
the dates she anticipated she would be out on leave that year. After marking the internal
planning calendar, Plaintiff did not discuss the specific dates with her supervisors.
O’Hara and Hodge never told Plaintiff that putting dates on the internal planning calendar
relieved her of her responsibility to request leave properly and receive advance approval. 2
In February 2013, Plaintiff had multiple meetings with O’Hara and Hodge, as well
as MWAA’s Labor Relations Specialist Juan Ramos, regarding her “2013 Work Goals
and Performance Factors.” That plan highlighted the need for her to submit her reports
on time and that she must “[u]se leave according to the Airports Authority’s Absence and
Leave Policy.” J.A. 347.

2

Plaintiff alleges that the MWAA left leave policy to the discretion of individual
supervisors. However, MWAA maintains that the internal planning calendar did not
substitute for formal procedure as stipulated by the Leave Policy.
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In 2013, the eight-day Jewish holiday of Passover occurred between Tuesday,
March 26 and Tuesday, April 2. Plaintiff’s religious beliefs preclude labor on the first
two days and last two days of Passover. On Thursday, March 21, 2013, at a weekly
meeting, Plaintiff requested leave from O’Hara to observe the first two days of Passover
on March 26 and 27, 2013. Plaintiff discussed her leave with O’Hara, received advance
approval, and then sent O’Hara an Outlook calendar invitation. On March 21, Plaintiff
knew that she would also need to take leave on Monday, April 1 and Tuesday, April 2,
but did not request leave for those days.
After observing the first two days of Passover, Plaintiff returned to work on
Thursday, March 28, 2013. O’Hara was also in the office on March 28, but Plaintiff did
not request leave that day for April 1 and 2, 2013, the last two days of Passover.
On Friday, March 29, 2013, Plaintiff sent an Outlook calendar invitation to
O’Hara and Hodge, “notifying” them that she would be out of the office on April 1 and 2,
2013. Plaintiff did not intend this Outlook calendar invitation to be a request for leave,
but merely a “reminder” of the dates she had placed on the internal calendar. J.A. 283,
289. Plaintiff planned to discuss her leave request with O’Hara in person on March 29,
2013, but O’Hara was out of the office that day. O’Hara did not respond to Plaintiff’s
March 29, 2013, Outlook calendar invitation. 3

3

Although Hodge, Plaintiff’s second-level supervisor, responded to Plaintiff’s
March 29, 2013, Outlook calendar invitation, Hodge stated in her deposition that she
assumed Plaintiff had already sought and received approval consistent with the Leave
Policy from O’Hara, in part because Plaintiff explained in a reply email that the calendar
invitation was a “reminder of [her] scheduled leave.” J.A. 326.
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On April 3, 2013, when O’Hara returned to the office, she sent an email to
Plaintiff that stated her absence on April 1 and 2 “was not pre-approved” by O’Hara or
Hodge and that “[a]s a matter of process” the internal planning calendar “is for the
Manager’s resource planning” and “not for pre-approving leave.”

J.A. 10; see also

J.A. 114. O’Hara continued: “Sending a meeting request on a day that I’m on leave to
request leave for the following two days is unacceptable.” J.A. 10; see also J.A. 114. In
the email, O’Hara also granted Plaintiff’s telephone request for leave on April 3, 2013-leave Plaintiff requested due to the death of an uncle. O’Hara subsequently classified
Plaintiff’s absence on April 1 and 2 as “Absent Without Leave” or “AWOL.”
On April 12, 2013, Plaintiff received a letter from Hodge proposing a five-day
suspension as discipline for (1) insubordination, for failing to meet deadlines regarding
deliverables including a plan to automate her work and completion of her annual
performance goals; (2) failure to follow the procedure for requesting leave; and
(3) absence without leave on April 1 and 2. In her deposition testimony, Plaintiff did not
refute any of the facts in the letter, other than to clarify that she failed to meet one
deadline because of the death of an aunt.
Regarding insubordination, the Table of Penalties in MWAA’s Conduct and
Discipline Directive states that the penalty for a first offense of “failure to carry out
orders” is “oral reprimand to 5 days suspension,” and the penalty for a first offense of
“refusal to carry out orders” is “5 days suspension to removal.” J.A. 131, 220. Plaintiff’s
suspension became final on May 3, 2013.

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Later, Plaintiff requested leave to observe another Jewish holiday in May 2013,
which O’Hara granted. Plaintiff retired from MWAA on May 31, 2013.
On September 17, 2013, Plaintiff filed a Charge of Discrimination with the Equal
Employment Opportunity Commission (“EEOC”) alleging religious discrimination in
violation of Title VII. On February 7, 2015, Plaintiff received a “Dismissal and Notice of
Rights” letter from the EEOC, which provides a potential plaintiff the right to sue.
B.
On May 5, 2015, Plaintiff filed suit in the United States District Court for the
District of Columbia against MWAA, and supervisors O’Hara and Hodge, alleging
violations of Title VII, 42 U.S.C. § 2000e-2(a)(1) (employment discrimination on the
basis of religion), 42 U.S.C. § 1983 (deprivation of civil rights), the federal Religious
Freedom Restoration Act (“RFRA”), 42 U.S.C. § 2000bb et seq., and the Virginia
Religious Freedom Act (“VRFA”), Va. Code Ann. Section 57-2.02. The district court
transferred the case to the United States District Court for the Eastern District of Virginia.
On August 17, 2015, the district court granted Hodge and O’Hara’s motions to
dismiss, but denied MWAA’s motion to dismiss.

The district court later granted

summary judgment to MWAA on all claims, finding that the record does not reflect
direct or circumstantial evidence of religious discrimination, the § 1983 claim is time

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barred, and the federal and state religious freedom acts do not apply. 4 Plaintiff appeals
each of these rulings.
II.
We review de novo a district court’s decisions to grant a motion to dismiss and a
motion for summary judgment. White v. BFI Waste Services, LLC, 375 F.3d 288, 291,
294 (4th Cir. 2004). In reviewing the district court’s grant of summary judgment, we
view the facts and draw all reasonable inferences in the light most favorable to the
nonmoving party. Id. at 294. However, the nonmoving party must set forth specific facts
that go beyond the “mere existence of a scintilla of evidence.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 252 (1986).

The nonmoving party bears the burden of

demonstrating a genuine issue of material fact for trial; conclusory or speculative
allegations do not suffice. Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649
(4th Cir. 2002).

4

Because we conclude that MWAA did not discriminate against Plaintiff on the
basis of her religion in violation of Title VII, and the record indicates MWAA always
allowed Plaintiff to observe the Sabbath and religious holidays if she complied with
formal procedure, MWAA necessarily did not “substantially burden” Plaintiff’s “exercise
of religion” in violation of the federal and state religious freedom acts. 42 U.S.C.
§ 2000bb-1(u); Va. Code Ann. § 57-2.02(B). Therefore, we decline to reach the issue
whether those statutes--which apply only to “government” and a “government entity”-apply to MWAA.

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III.
A.
Title VII of the Civil Rights Act of 1964 provides two ways of proving
discrimination in employment by showing: (1) “disparate treatment” or (2) “disparate
impact.” EEOC v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028, 2032 (2015);
42 U.S.C. § 2000e-2(a).

Plaintiff alleges “disparate treatment”--that is, “intentional

discrimination”--under 42 U.S.C. § 2000e-2(a)(1) on the basis of her religion.

That

provision prohibits an employer from (1) “discriminat[ing] against any individual”
(2) “because of” (3) “such individual’s . . . religion.” Id. § 2000e-2(a)(1). Title VII, in
turn, defines religion to “includ[e] all aspects of religious observance and practice, as
well as belief, unless an employer demonstrates that he is unable to reasonably
accommodate to an employee’s . . . religious observance or practice without undue
hardship on the conduct of the employer’s business.” Id. § 2000e(j) (emphasis added).
“Because this definition includes a requirement that an employer ‘accommodate’ an
employee’s religious expression,” an employee alleging intentional discrimination under
§ 2000e-2(a)(1) can bring suit based on a disparate-treatment theory or a failure-toaccommodate theory. Chalmers v. Tulon Co. of Richmond, 101 F.3d 1012, 1018 (4th Cir.
1996) (citing Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977)).
Plaintiff argues that the district court erred by granting summary judgment to
Defendants on her Title VII claim because it (1) impermissibly resolved factual issues
when evaluating her claim under a disparate-treatment theory and (2) failed to consider
her claim under a failure-to-accommodate theory.
9

Plaintiff also argues (3) that the

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district court erred in granting her supervisors’ motions to dismiss. We consider each
argument in turn.
1.
“To prove a claim under the disparate treatment theory, an employee must
demonstrate that the employer treated her differently than other employees because of her
religious beliefs.”

Chalmers, 101 F.3d at 1017 (emphasis omitted).

Absent direct

evidence of discrimination, 5 a plaintiff can establish discrimination via circumstantial
evidence under the burden-shifting framework established in McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802 (1973). The burden-shifting framework first requires the
plaintiff to establish a prima facie case of discrimination before the burden shifts to the
employer to provide evidence of a legitimate, nondiscriminatory reason for its
employment action; if the employer does so, the burden shifts back to the employee to
show that the employer’s proffered reason is pretextual. Chalmers, 101 F.3d at 1018. To
establish a prima facie case, a plaintiff must show “(1) membership in a protected class,
(2) satisfactory job performance, (3) adverse employment action, and (4) different
treatment”--which here means more severe discipline--“than similarly situated employees
outside the protected class.” Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th
Cir. 2010); Cook v. CSX Transp. Co., 988 F.2d 507, 511 (4th Cir. 1993).
Applying this framework, the district court concluded that Plaintiff had not
established a prima facie case of discrimination under a disparate-treatment theory. As
5

Plaintiff does not contest the district court’s conclusion that Plaintiff adduced no
direct evidence of discrimination.
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an individual alleging discrimination on the basis of her faith, Plaintiff is a member of a
protected class.

And she suffered an adverse employment action because MWAA

suspended her, in part, because of the allegedly discriminatory AWOL finding.
However, the district court concluded that “Plaintiff fails to establish a prima facie case
of discrimination under Title VII because she cannot demonstrate satisfactory job
performance or that she was treated differently from similarly situated employees outside
the protected class.” J.A. 514. We agree.
First, as to her job performance, Plaintiff argues that the district court incorrectly
determined that she did not dispute the charge of insubordination and that it alone merited
a five-day suspension, regardless of the allegedly discriminatory AWOL classification.
The record belies Plaintiff’s argument.

As MWAA notes, the Table of Penalties

contained in MWAA’s Conduct and Discipline Directive states that the penalty for a first
offense of “failure to carry out orders” is “oral reprimand to 5 days suspension,” and the
penalty for a first offense of “refusal to carry out orders” is “5 days suspension to
removal.” J.A. 131, 220. Plaintiff points to a portion of Hodge’s deposition to suggest
that, absent Plaintiff’s failure to request leave properly, MWAA would only have
“reprimanded” Plaintiff for insubordination. But Hodge did not so concede. 6
Plaintiff also asserts that she disputed the allegations regarding insubordination in
her deposition. But the portion she cites reveals that she did not refute any of the

6

Hodge stated: “At a minimum, [Plaintiff] would have been reprimanded.”
J.A. 334 (emphasis added).

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J.A. 292–94.

MWAA attorneys asked Plaintiff several times whether the

contents of the April 12 disciplinary letter, including the charge of insubordination-paragraph by paragraph--were inaccurate. She disputed nothing, and only explained the
tardiness of one report by citing the death of an aunt. Plaintiff also asserts that she
“disputed” part of MWAA’s Statement of Undisputed Material Facts, which cited
deposition testimony explaining that Plaintiff’s “supervisors had concerns regarding her
deteriorating performance and attendance and began to supervise her more closely in an
effort to improve both. Numerous meetings were held throughout the first three months
of 2013 in an effort to improve [Plaintiff’s] performance and attendance.” J.A. 127 ¶ 17.
Without any citation to the record, Plaintiff simply stated “False” in her Response to
Defendant’s Statement of Undisputed Material Facts. J.A. 427. 7 Conclusory allegations
do not suffice to create a genuine issue of material fact for trial. See Thompson, 312 F.3d
at 649.
Even if Plaintiff could establish a genuine issue of material fact regarding whether
her work performance was satisfactory, Plaintiff adduces no evidence that MWAA
treated her differently from similarly-situated employees outside her protected class. In
Plaintiff’s Statement of Undisputed Material Facts, she states--again, with no citation to
the record or other evidence--that: “No employee of MWAA has ever been suspended for

7

Plaintiff also argues that she disputed the charge of insubordination in a letter
written by her attorney to MWAA. However, that letter is not included in the record on
appeal. An “appellate court normally will not consider facts outside the record on
appeal,” and we decline to do so with regard to this letter. Colonial Penn Ins. Co. v. Coil,
887 F.2d 1236, 1239 (4th Cir. 1989).
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as much as three (3) days for being AWOL or for taking annual leave without approval of
a request of annual leave.” J.A. 435. Plaintiff provides no evidence that she received
more severe discipline than similarly-situated employees outside her protected class, nor
any comparators on the basis of which to make this assessment. See Cook, 988 F.2d
at 511.
Plaintiff does not establish a genuine dispute of material fact either that she
performed her work satisfactorily or that MWAA disciplined her more severely than
other similarly-situated employees outside her protected class. Plaintiff thus fails to
establish a prima facie case of discrimination under a disparate-treatment theory.
2.
Plaintiff’s “primary argument is not that the district court erred in its analysis of its
claim under the disparate treatment theory, but that the court erred in failing to analyze
her suit under the accommodation theory.”

Chalmers, 101 F.3d at 1018.

Unlike

disparate treatment, under a failure-to-accommodate theory “an employee can establish a
claim even though she cannot show that other (unprotected) employees were treated more
favorably or cannot rebut an employer’s legitimate, non-discriminatory reason for her
discharge.” Id. To establish a prima facie failure-to-accommodate claim, a plaintiff must
show (1) she has a bona fide religious belief or practice that conflicts with an
employment requirement and (2) the need for an accommodation of that religious belief
or practice served as a motivating factor in the employer’s adverse employment action.
See id. at 1019; EEOC v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028, 2033 (2015)
(clarifying that “the rule for disparate-treatment claims based on a failure to
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accommodate a religious practice is straightforward: An employer may not make an
[employee’s] religious practice, confirmed or otherwise, a factor in employment
decisions”). Here, Plaintiff adduced evidence of neither, although we need not proceed
beyond the first.
With respect to the leave at issue, Plaintiff does not establish the first element of
her claim: a religious conflict with an employment requirement. Her observance of the
Sabbath during winter months when the sun sets earlier created a conflict with her normal
working hours on Fridays, and MWAA consistently accommodated her request to leave
work early. Regarding Jewish holidays, however, no conflict existed between Plaintiff
observing religious holidays and following MWAA’s neutral rules requiring advance
approval of leave following specified procedures.

Nor could she establish such a

conflict. The Leave Policy merely requires employees to request leave by form or email,
and obtain advance approval.
Of particular significance is the fact that Plaintiff points to no occasion on which
MWAA denied leave when she requested leave in compliance with MWAA’s Leave
Policy. To the contrary, the evidence indicates MWAA would have granted her request
to take leave if she had abided by the Leave Policy. MWAA regularly granted her leave
to observe religious holidays for the prior 26 years and, in 2013, approved leave for the
first two days of Passover and another religious holiday several weeks later. Plaintiff
followed the Leave Policy on those occasions. She failed to obtain advance approval for
her absence on April 1 and 2, which coincided with the last two days of Passover in 2013,

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and that failure to comply is the sole differentiating factor from every occasion on which
leave was granted.
3.
Plaintiff also argues that the district court erred in dismissing respondents O’Hara
and Hodge, Plaintiff’s first- and second-level supervisors. In Lissau v. Southern Food
Services, Inc., we held that supervisors are not liable in their individual capacities for
Title VII violations. 159 F.3d 177, 180 (4th Cir. 1998). 8 Plaintiff concedes that Lissau
dictates dismissing her Title VII claim against Hodge and O’Hara. See Reply Br. at 17–
18. 9

IV.
Plaintiff next argues that the district court erred by granting summary judgment to
MWAA on the § 1983 claim when it found that the applicable statute of limitations
barred the claim. Because § 1983 does not contain an express statute of limitations, we
use state statutes of limitations, and here Virginia’s two-year statute-of-limitations period
applies. See A Soc’y Without A Name v. Virginia, 655 F.3d 342, 348 (4th Cir. 2011).

8

The district court dismissed the individual defendants on the basis that individual
supervisors may not be sued personally when they are carrying out personnel decisions of
a plainly delegable character, relying on Birkbeck v. Marvel Lighting Corp., 30 F.3d 507,
510 n.1 (4th Cir. 1994). J.A. 107. We affirm, however, under the blanket rule this court
announced in Lissau, 159 F.3d at 180.
9

Plaintiff nevertheless contends that her § 1983 claim should remain against these
individuals. However, because we conclude that Plaintiff’s § 1983 claim is time barred,
see infra Part IV, the district court properly dismissed the individual supervisors.
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Federal law controls when the applicable statute-of-limitations period begins to run; this
occurs when the claim accrues--that is, when the plaintiff “knows or has reason to know
of the injury which is the basis of the action.” Id. (quoting Cox v. Stanton, 529 F.2d 47,
50 (4th Cir. 1975)). Plaintiff does not dispute that the action accrued on May 3, 2013,
when her disciplinary action became final. See Appellant’s Br. at 37–38. Plaintiff filed
suit on May 5, 2015, more than two years later. The statute of limitations therefore bars
her claim. 10

V.
The district court properly dismissed Plaintiff’s individual supervisors and granted
summary judgment to MWAA on both the Title VII and § 1983 claims. Accordingly, the
judgment of the district court is
AFFIRMED.

10

Plaintiff suggests that she could not file her § 1983 claim earlier. That is
incorrect. Plaintiff filed a Charge of Discrimination with the EEOC on September 17,
2013. Although she did not receive a right-to-sue letter until February 7, 2015, she could
have requested one after the 180-day statutory period expired. See 42 U.S.C. § 2000e5(f)(1); see also 29 C.F.R. § 1601.28 (explaining that upon request by an aggrieved party
“the Commission shall promptly issue” notice of right to sue “at any time after the
expiration of one hundred eighty (180) days from the date of filing of the charge with the
Commission”). For this reason, Plaintiff’s suggestion that Virginia’s tolling provision,
Va. Code Ann. Section 8.01-229(E)(1), tolled her case while her claim was pending
before the EEOC lacks merit.
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