UN PUBLISHED 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.2 Affirmed by un published 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Unpublished opinions are not binding precedent in this circuit.3 DUNCAN, Circuit Judge: Plaintiff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 su pervisors’ 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 t o 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 Tr ansp., Ltd. v. Metro. Wash. Airports Auth. , 263 F.3d 371, 373 ( 4th Cir. 2001).4 recognition of Plaintiff’s religious dietary requirements. MWAA

-- including P laintiff’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 requ esting leave. MWAA’s Absence and Leave Program (“Leave Policy”) specifies that e mployees must request leave by f orm or e mail 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, t he 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 Hodg e 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 s ubmit 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 indi vidual supervisors. However, MWAA maintains that the internal planning calendar did not substitute for formal procedure as stipulated by the Leave Policy.5 In 2013, the eight

- da y 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 Ma rch 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
kn ew 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, 2 013, Plaintiff sent an Outlook c alendar 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 c alendar invitation. 3

3 Altho ugh 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. 326.6 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

- ap proving 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 Leav e” or “AWOL. ” On April 12, 2013 , Plaintiff received a letter from Hodge proposing a five

- day suspension as discipline for (1) insubordination, for f ailing 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) absen ce 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

. Regard ing insubordination, t he 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 o n May 3, 201 3.7 Later, Plaintiff requested leave to observe another Jewish holiday in May 2013, which O’Hara granted. Plaintiff reti red 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 discr imination in violation of Title VII. On February 7, 2015, Plaintiff received a “Dismissal an d 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 Cou rt for the District of Columbia against MWAA, and supervisors O’Hara and Hodge, allegi ng 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 Freed om 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 mo tion 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 time8 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 decision s 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, w e 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 spe cific facts that go beyond the “ mere existe nce 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; concluso ry 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 viola tion 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 st ate 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.9 III.
A.
T itle VII of the Civil Rights Act of 1964 provides two ways of proving di scrimination in employment by showing : (1) “disparate treatment” or (2) “disparate impact.” EEOC v. Abercrombie & Fitch Stores, Inc. , 1 35 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 bu siness.” 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

- t o accommodate 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. Plaintiff also argues (3) that the10 district c ourt 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 o f 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 Trans p . 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 di sparate

- treatment theory. As

5 Plaintiff does n ot contest the district court’s conclusion that Plaintiff adduced no direct evidence of discrimination.11 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 discrimi natory 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 similar ly 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 f ive

- day suspension, regardless of the allegedly discriminatory AWOL classification. The record belies Plaintiff’s argument. As MWAA notes, t he Table of Penalties contained in MWAA’s Conduct and Discipline Directive states that the penalty for a first off ense 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).12 charges. 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 Concl usory 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 add uces no evidence that MWAA treated her differently from similarly

- situated employees outside her protected class. In Plaintiff’s Statement of Undispu ted Material Facts, she states

-- again, with no citation to the record or other evidence

-- that: “No employe e 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 a ppeal,” 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).13 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 s evere discipline than similarly

- sit uated employees outside her protected class, nor any comparators on the basis of which to make this assessment. See Cook , 9 88 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 estab lish 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. Unl ike dispara te 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 es tablish a prima facie f ailure

- 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 i n 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 to14 accommodate a religious practice is straigh tforward: An employer ma y 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 set s 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 advanc e approval of leave following specified procedures

. Nor could she establish such a conflict . The Leave Policy merely requires employees to r equest 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, t he 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 las t two days of Passover in 2013,15 and that failure to comply is the sole differentiating factor from every occasion on which leave was granted.
3. Plaintif f 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 v iolations. 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

u se 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 w hen they are carrying out personnel decisions of a plainly delegable character, relying on Birkbec k 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 .3 d 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 I V , the district court properly dismiss ed the individual supervisors.16 F ederal 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 acti on accrue d on May 3, 2013, when her disciplinary action became final. S ee 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 Fe bruary 7, 2015, she could have requested one after the 180

- day statutory period expired. See 42 U.S.C. § 2000e

5(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.