Employment – Lack of protected activity dooms retaliation claim

Where an employee requested accommodation paperwork from his employer, but never submitted the paperwork actually seeking an accommodation, he did not engage in protected activity. As such, his retaliation claim was dismissed.

Background

Brian Piscitelli used to work for the software company GitLab Inc. His job required maintaining a security clearance, but Piscitelli’s clearance expired in February 2021. Around the same time, the company imposed a COVID-19 vaccination requirement and barred unvaccinated employees from traveling.

Piscitelli—a Christian who “believes that accepting the COVID vaccine violates Scripture’s teaching”—asked human resources, or HR, “about a religious/medical exemption/accommodation.” HR sent him the “forms to complete to obtain” such an accommodation,  but Piscitelli never returned a completed copy.

Later, in June 2022 (when the vaccine mandate had been rescinded but the travel policy remained in effect), Piscitelli “again asked [HR] if religious/medical exemption/accommodation waivers were accepted” and was told “that [they] were no longer accepted.” In August 2022, GitLab fired Piscitelli, citing his “lack of security clearance” as the reason for his termination.

Piscitelli sued GitLab under Title VII, asserting both religious discrimination and retaliation. GitLab moved to dismiss Piscitelli’s amended complaint. After a short motions hearing, the district court made an oral ruling granting the motion to dismiss.

Discrimination

Instead of applying this circuit’s four-part test for analyzing religious discrimination claims, see, e.g., Coleman v. Maryland Ct. of Appeals, 626 F.3d 187 (4th Cir. 2020), Piscitelli insists the district court should have adopted the “modified prima facie test” the Tenth Circuit applies when an employee claims they were fired because their beliefs differ from those of their supervisor or their employer more broadly. This court has considerable doubts about whether the district court—or even a panel of this court—could adopt the Shapolia test, because it stands in tension with this circuit’s case law.

Moreover, Piscitelli did not plead sufficient facts to trigger the Tenth Circuit’s modified prima facie test, so any error in not applying that test would have been harmless. The complaint says nothing about: (1) the religious beliefs of GitLab in general or Piscitelli’s supervisor in particular; (2) how Piscitelli’s religious beliefs differed from those held by GitLab or his supervisor; (3) whether Piscitelli communicated his religious beliefs to anyone at GitLab or (4) how he was discriminated against for having different religious beliefs. And the complaint’s allegations about the supervisor’s anger or frustration about Piscitelli’s refusal to get vaccinated do not, without more, demonstrate that Piscitelli’s termination “clearly revolved around and alleged a difference in religious beliefs.”

Retaliation

To state a retaliation claim, Piscitelli needed to plead facts plausibly alleging: “(1) that [he] engaged in a protected activity, (2) that [GitLab] took an adverse action against [him], and (3) that there was a causal link between the two events.”

Piscitelli’s inquiries about the availability of a religious or medical exemption are not protected activity for Title VII retaliation purposes. Piscitelli cites several non-binding cases in support of his argument that protected activity can  include “requesting  reasonable accommodation or religious accommodation.”

But the complaint does not allege that Piscitelli ever actually requested an accommodation. Instead—as he conceded before the district court—Piscitelli asked for paperwork but then never submitted anything. Based on his allegations and that concession, the complaint falls well short of plausibly alleging Piscitelli engaged in protected activity. And without any protected activity, Piscitelli’s retaliation claim fails as a matter of law.

Affirmed.

Piscitelli v. Gitlab, Inc., Case No. 24-1557, April 7, 2026. 4th Cir. (Heytens), from EDVA at Alexandria (Trenga). Rosanna C. Lopez for Appellant. Joseph E. Schuler and Matthew E. Kreiser for Appellee. VLW 026-2-122. 5 pp.

Full-Text Opinion

VLW 026-2-122.
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