Where a woman alleged that the Army failed to accommodate her religion by requiring her to work on Sundays, but the record showed that she elected to work on Sundays, thus creating her own scheduling conflict with church services, the Army prevailed on the claim.
Joy A. Allen, who is proceeding pro se, has filed a four count complaint against Christine Wormuth, the Secretary of the Army, alleging that defendant denied plaintiff an accommodation to engage in religious practice (Count One), exposed her to a sexually hostile work environment (Count Two), discriminated against her on the basis of her religion and gender (Count Three) and retaliated against her for participating in protected activity (Count Four). Both parties have filed motions for summary judgment.
To establish a prima facie religious accommodation claim in the Fourth Circuit, a plaintiff must produce evidence showing “(1) he or she has a bona fide religious belief that conflicts with an employment requirement; (2) he or she informed the employer of this belief; [and] (3) he or she was disciplined for failure to comply with the conflicting employment requirement.”
Plaintiff has failed to establish a prima facie case that the Army failed to accommodate her religion because she has not alleged that her bona fide religious belief conflicted with an employment requirement. The record shows that plaintiff was not required to work on Sundays, but, by choosing to do so, she created her own scheduling conflict with church services.
To establish a claim for a hostile work environment under Title VII, a plaintiff must present evidence that, if “viewed in her favor, would allow a reasonable jury to conclude that the harassment was (1) unwelcome, (2) based on (plaintiff’s] gender, . . . (3) sufficiently severe or pervasive to alter the conditions of her employment and create an abusive atmosphere, and (4) imputable to (her employer].”
Because plaintiff has described only an isolated incident of inappropriate touching, she has not established that the conduct she experienced was severe and pervasive. Even if the incident plaintiff experienced was severe and pervasive gender-based harassment, defendant correctly argues that the maintenance worker’s conduct cannot be imputed to the Army.
There is absolutely no evidence in the record that the Army had any knowledge of any misconduct by the maintenance worker until Allen reported her encounter; therefore, there was no action that the Army could have taken to prevent it from happening. Moreover, once advised of the incident, the defendant took action to remedy it by alerting the maintenance worker’s employer and affording plaintiff the ability to change offices to avoid any further contact with the individual.
The plaintiff must establish a prima facie case by showing “(1) [s]he belongs to a protected class; (2) [s]he suffered an adverse [personnel] action; (3) at the time of the adverse [personnel] action, [s]he was performing h[er] job at a level that met h[er] employer’s legitimate expectations”; and (4) the adverse personnel action occurred under ‘circumstances [that gave] rise to an inference of unlawful discrimination.’”
Plaintiff has failed to establish that she was meeting the Army’s legitimate expectations at the time of her removal. Instead, the record contains overwhelming, undisputed evidence that plaintiff’s supervisors determined that plaintiff was not meeting their legitimate expectations.
And not only did plaintiff subjectively believe she was removed from the contract for a reason other than gender or religious discrimination, the record does not otherwise contain evidence of circumstances that could give rise to an inference of discriminatory termination. Finally, even if plaintiff had established a prima facie case, she has failed to show that the Army’s legitimate, nondiscriminatory reasons were pretextual.
Defendant concedes that plaintiff engaged in protected activity when she reported the incident with the maintenance worker to her supervisors. The defendant also concedes that plaintiff’s removal from the Army contract constitutes a materially adverse action. Plaintiff has also established a causal connection due to the six days between the protected activity and her removal from the contract. Because defendant has proffered legitimate non-retaliatory reasons for plaintiff’s removal from the contract, to prevail on her claim, plaintiff must show that her protected activity was the “but for” cause of the materially adverse action, which she has not done.
Plaintiff’s motion for summary judgment denied. Defendant’s motion for summary judgment granted.
Allen v. Wormuth, Case No. 1:22-cv-603, Feb. 2, 2023. EDVA at Alexandria (Brinkema). VLW 023-3-045. 28 pp.