Foster v. Wormuth

• Court: District Court, District of Columbia
• Decided: April 14, 2025
• Docket: Civil Action No. 2023-1409
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ASHLEY FOSTER,

Plaintiff,

v. Civil Action No. No. 23-1409 (AHA) DANIEL DRISCOLL, Secretary of the Army,

Defendant.

Memorandum Opinion

Plaintiff Ashley Foster sues the Secretary of the Army Daniel Driscoll in her official

capacity alleging religious discrimination in violation of Title VII and disability discrimination in

violation of the Rehabilitation Act. The wary moves to dismiss, arguing that Foster’s complaint

fails to state a claim. The Court agrees and grants the motion to dismiss.

I. Background 1

The complaint alleges Foster worked as an emergency management specialist with the U.S.

Army Corps of Engineers (“USACE”). ECF No. 1 ¶ 3. In response to the COVID-19 pandemic,

USACE adopted a vaccination policy. Id. ¶ 17. In 2021, Foster told her supervisor and the agency’s

Equal Employment Opportunity Office that she would be submitting requests for accommodation

related to the vaccination policy based on her sincerely held religious beliefs and disability. Id. In

September and October of 2021, she informed her supervisor about her religious beliefs and that

she had tachycardia, a cardiovascular impairment that limited her ability to rest, sit up, stand, and

1 As required at the pleading stage, the Court accepts the complaint’s well-pled allegations as true and draws all reasonable inferences in Foster’s favor. perform strenuous activities. Id. ¶ 16–17. She also told her supervisor that she was undergoing

cardiovascular testing. Id. ¶ 20. That testing resulted in a medical opinion that the risks of Foster

receiving the COVID-19 vaccine outweighed the benefits. Id.

Foster submitted a request for religious accommodation in November 2021. Id. ¶ 22. A few

months later, she was advised to submit a “Vaccine Attestation Form” to obtain religious

accommodation. Id. ¶ 24. The complaint does not provide any details about that form or indicate

whether Foster submitted it. Later that same month, a supervisor called Foster to elicit additional

information about her request for religious accommodation, stating that he “would hate to lose

Plaintiff as an employee if she didn’t comply” with the agency’s policy. Id. ¶ 25. Foster did not

submit an accommodation request related to disability. She alleges that when she first raised her

intent to do so, USACE refused to provide “a channel through which she could submit a request

for a disability accommodation.” Id. ¶ 21. The complaint does not indicate that USACE took any

actions related to Foster’s conditions of employment during this period.

In March 2022, USACE announced a new process for accommodation requests related to

its vaccination policy. Id. ¶ 26. Foster viewed the new process as “futile” because people who were

granted an accommodation would no longer be able to participate in temporary duty travel, which

is “a highly important duty of her job” and “an essential component of any viable or competitive

application for promotion or career advancement.” Id. ¶ 27–28. Foster also objected to the new

process because it required people seeking an accommodation to share their private religious and

medical information in a system “available to an unknown number of unnecessary and

unauthorized persons.” Id. ¶ 29.

Around April 2022, USACE canceled temporary duty travel that Foster had scheduled. Id.

¶ 34. When Foster told her supervisor about this, he advised Foster that the agency “is approving travel for those seeking an exemption to the vaccine mandate by filing for a reasonable

accommodation” and that he would “fully support” this if she decided to file the accommodation

request. Id. In June 2022, USACE canceled Foster’s temporary duty travel a second time. Id. ¶ 35.

Foster filed an administrative complaint a few days later and, after receiving the agency’s

decision finding no discrimination, she filed this suit. Id. ¶¶ 15, 33. The Secretary has moved to

dismiss for failure to state a claim under Rule 12(b)(6) or, in the alternative, for summary judgment

under Rule 56.

II. Discussion

To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), “a complaint

must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible

on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550

U.S. 544, 570 (2007)). A claim is facially plausible “when the plaintiff pleads factual content that

allows the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Id. (citing Twombly, 550 U.S. at 556). The Court “must take all the factual allegations in

the complaint as true,” though it is “not bound to accept as true a legal conclusion couched as a

factual allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986).

Foster’s complaint lists seventeen counts; however, after the Secretary observed that

Counts I, II, V, VI, IX, X, XIII, XIV, and XVII did not provide a cause of action against the United

States, Foster voluntarily dismissed them. ECF Nos. 13-1 at 2, 15 at 5. Her remaining claims assert

failure to accommodate, disparate treatment, hostile work environment, and retaliation based on

religion under Title VII and based on disability under the Rehabilitation Act. The Court

accordingly considers whether the complaint plausibly states each of those claims. A. Foster Has Not Stated Claims For Failure To Accommodate.

The complaint asserts claims of failure to accommodate religion and disability under Title

VII and the Rehabilitation Act, respectively (Counts VII and VIII). “Title VII of the Civil Rights

Act of 1964 requires employers to accommodate the religious practice of their employees unless

doing so would impose an ‘undue hardship on the conduct of the employer’s business.’” Groff v.

DeJoy, 600 U.S. 447, 453–54 (2023) (quoting 42 U.S.C. § 2000e(j)). To show a prima facie failure

to accommodate under Title VII, a plaintiff must show “(1) they held a bona fide religious belief

conflicting with an employment requirement; (2) they informed their employers of this belief; and

(3) they were disciplined for failure to comply with the conflicting employment requirement.”

Lemmons v. Georgetown Univ. Hosp., 431 F. Supp. 2d 76, 95 & n.22 (D.D.C. 2006) (recognizing

that the D.C. Circuit has indicated its approval of this framework). “[A]n employment

discrimination plaintiff is not required to plead every fact necessary to establish a prima facie case

to survive a motion to dismiss.” Jones v. Air Line Pilots Ass’n, Int’l, 642 F.3d 1100, 1104 (D.C.

Cir. 2011). A plaintiff must, however, plead “factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Harris v. D.C. Water

& Sewer Auth., 791 F.3d 65, 68 (D.C. Cir. 2015) (quoting Iqbal, 556 U.S. at 678). A failure-to-

accommodate claim under the Rehabilitation Act similarly requires a plaintiff to plausibly allege

“(i) she was disabled within the meaning of the Rehabilitation Act; (ii) her employer had notice of

her disability; (iii) she was able to perform the essential functions of her job with or without

reasonable accommodation; and (iv) her employer denied her request for a reasonable

accommodation of that disability.” Solomon v. Vilsack, 763 F.3d 1, 9 (D.C. Cir. 2014) (citations

omitted).

Drawing all inferences in Foster’s favor, one can reasonably infer from the complaint that

Foster was frustrated in her efforts to seek an accommodation when USACE first adopted a vaccine policy. Foster complains that, after informing USACE of her request for religious accommodation,

she was required to submit a “Vaccine Attestation Form” (which she apparently did not complete)

and, after stating her intent to seek a disability accommodation, she was initially not given a

channel to formally notify USACE of her request. ECF No. 1 ¶¶ 21–24. Even accepting these facts,

however, Foster makes no allegation as to how USACE failed to accommodate Foster in any way

during this period—the complaint indicates that Foster was able to remain unvaccinated, and there

is no indication of any disciplinary action or changes to the conditions of her employment.

When USACE later adopted a new process to request an accommodation from the vaccine

requirement in March 2022, Foster did not request one based on her religion or disability. Id. ¶¶ 24,

27. Although her complaint states that she viewed the accommodation process as “futile,” the sole

basis asserted to support this is that Foster believed an exemption would prevent her from

temporary duty travel. Id. ¶ 27. That particular objection is contradicted by later allegations that

her supervisor advised her that people with exemptions could be approved for temporary travel

and stated he would “fully support” her in seeking an exemption. Id. ¶ 34. And, in any event, Foster

cannot now allege failure to accommodate when she never requested an accommodation in the

first place under procedures available to do so. See Flemmings v. Howard Univ., 198 F.3d 857, 861

(D.C. Cir. 1999) (“An underlying assumption of any reasonable accommodation claim is that the

plaintiff-employee has requested an accommodation which the defendant-employer has denied.”). 2

The Secretary’s motion to dismiss raised Foster’s failure to seek accommodation through

the vaccination exemption process, and Foster did not address this issue in her response brief. ECF

No. 13-1 at 19. The Court accordingly finds the issue conceded. Hopkins v. Women's Div., Gen.

2 Foster’s complaint refers to supporting exhibits throughout, but she did not attach any to her complaint. The Secretary pointed this out in the motion to dismiss, but Foster did not address it in her reply brief. ECF No. 13-1 at 4 n.5. Bd. of Glob. Ministries, 284 F. Supp. 2d 15, 25 (D.D.C. 2003) (citation omitted) (“It is well

understood in this Circuit that when a plaintiff files an opposition to a dispositive motion and

addresses only certain arguments raised by the defendant, a court may treat those arguments that

the plaintiff failed to address as conceded.”), aff’d, 98 F. App’x 8 (D.C. Cir. 2004). 3

B. Foster Has Not Stated Claims For Disparate Treatment Or Retaliation.

Foster also alleges disparate treatment based on her religion and disability in violation of

Title VII and the Rehabilitation Act, respectively (Counts III and IV). To prevail on a disparate

treatment clam under Title VII or the Rehabilitation Act, a plaintiff must show (i) they suffered an

adverse employment action (ii) because of their protected characteristic or disability. See 42 U.S.C.

§ 2000e–16(a); 29 U.S.C. §§ 701 et seq.; Baloch v. Kempthorne, 550 F.3d 1191, 1196 (D.C. Cir.

2008). As noted above, the plaintiff is not required to plead every fact necessary to establish a

prima facie case to survive a motion to dismiss but still must plead “factual content that allows the

court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

Harris, 791 F.3d at 68 (quoting Iqbal, 556 U.S. at 678).

Both Title VII and the Rehabilitation Act also prohibit retaliation for protected activity—

namely, discriminating against an employee because the employee has “made a charge, testified,

assisted, or participated in any manner in an investigation.” 42 U.S.C. § 2000e-3(a); 42 U.S.C.

§ 12203(a). A plaintiff claiming retaliation under Title VII or the Rehabilitation Act must show

they suffered (i) a materially adverse action (ii) because they had brought or threatened to bring a

discrimination claim. Baloch, 550 F.3d at 1198. A “materially adverse action” is one that would

3 The Secretary further argues that, notwithstanding Foster’s failure to seek an exemption, USACE provided Foster with a reasonable accommodation “because she was permitted, and in fact did, telework.” ECF No. 13-1 at 19. Foster does not respond to this argument, and it is therefore conceded as well. have “dissuaded a reasonable worker from making or supporting a charge of discrimination.” Id.

(quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)).

It appears Foster’s disparate treatment and retaliation claims stem largely, if not

exclusively, from the same frustrations with the accommodation process that underpin her failure

to accommodate claim, as those facts make up the entirety of the complaint’s factual allegations.

Insofar as that is the case, Foster’s disparate treatment claims are dismissed as duplicative. See

Sandler v. Blinken, No. 21-cv-2226, 2022 WL 4547557, at *7 (D.D.C. Sept. 29, 2022) (dismissing

any intentional discrimination or retaliation claims under the Rehabilitation Act as duplicative of

failure-to-accommodate claim); Cogdell v. Murphy, No. 19-cv-2462, 2020 WL 6822683, at *9 n.5

(D.D.C. Nov. 20, 2020) (declining to consider alleged denial of reasonable accommodation as a

separate claim for purposes of intentional disability discrimination).

In the complaint’s two causes of action for disparate treatment, Foster pleads the element

of adverse employment action, followed by thirteen bullets of conclusory allegations, including

that she was subject to behavior that constituted “[h]arassing,” “coercing,” “targeting,”

“[f]abricating, manufacturing, altering, forging, or otherwise creating falsified documents,”

“threatening,” and “publicizing” information about her. ECF No 1. ¶¶ 60, 68. Foster’s retaliation

counts likewise conclusorily assert that USACE “engaged in systemic retaliation.” Id. ¶¶ 161, 167.

However, none of those allegations are accompanied by any specific factual basis there or

elsewhere in the complaint. That these are conclusory, and not pled with specific factual basis, is

clear from the fact that the very same list of conclusory allegations was copied and pasted from

the count for disparate treatment based on disability to the count for disparate treatment based on

religion (even forgetting to change the word “disability” to “religion” in several instances between

the two counts). Id. ¶¶ 60, 68. Of the pasted list of statements in the disparate treatment counts, the only ones with any

factual specificity are “[r]efusing to accommodate Plaintiff by ordering her to work from home”

and limiting Foster’s “participation in [temporary duty] travel.” Id. As described above, the

complaint alleges Foster did not pursue the accommodation process available to her, so these

allegations do not plausibly state a claim for discrimination. In addition, the complaint lacks any

description of the circumstances of USACE’s work-from-home policy or how it was applied to

Foster. And there are no allegations to support the inference that either the work-from-home policy

or the restrictions on temporary duty travel were imposed because of her religion or disability, or

in retaliation for her raising her religion or disability. See Hollingsworth v. Vilsack, No. 23-cv-

2427, 2024 WL 4332118, at *10 (finding that the Court “cannot infer discrimination on the basis

of a protected characteristic from nothing” when the plaintiff “provides no facts relevant to motive

at all” and does not “connect” the adverse action at issue with her protected characteristic). The

Court accordingly finds that Foster has failed to adequately plead disparate treatment or retaliation

under Title VII or the Rehabilitation Act. 4

C. Foster Has Not Stated Claims For Hostile Work Environment.

Foster’s hostile work environment claims under Title VII and the Rehabilitation Act fail

for similar reasons. For a hostile work environment claim under Title VII, “a plaintiff must show

that his employer subjected him to ‘discriminatory intimidation, ridicule, and insult’ that is

4 The Secretary moved for summary judgment, in the alternative to dismissal for failure to state a claim. ECF No. 13. In support, the Secretary filed a statement of undisputed facts and evidence indicating the pause in temporary duty travel during the pandemic did not affect Foster’s career development and that, to the contrary, Foster was twice promoted during the pandemic—first to permanent employee and again during a competitive process—and resumed temporary duty travel shortly after. ECF No. 13-5 at ¶¶ 8–9. The Court finds no need to treat the Secretary’s motion as one for summary judgment given that the complaint fails to state a claim on its face. The Court notes, however, that Foster has conceded these points by failing to respond to the Secretary’s statement of undisputed facts or evidence. ‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an

abusive working environment.’” Baloch, 550 F.3d at 1201 (quoting Harris v. Forklift Sys., Inc.,

510 U.S. 17, 21 (1993)). The allegedly harassing conduct must be based on a protected

characteristic. Id.; Davis v. Coastal Int’l Sec., Inc., 275 F.3d 1119, 1123 (D.C. Cir. 2002); Na’im v.

Clinton, 626 F. Supp. 2d 63, 73 (D.D.C. 2009) (“Courts in this jurisdiction have routinely held that

hostile behavior, no matter how unjustified or egregious, cannot support a claim of hostile work

environment unless there exists some linkage between the hostile behavior and the plaintiff’s

membership in a protected class.”). The legal standard for a hostile work environment claim is the

same under the Rehabilitation Act. See Moss v. Hayden, No. 18-cv-470, 2020 WL 4001467, at *10

(D.D.C. July 15, 2020) (“Although these allegations are brought under separate statutory schemes,

they are analyzed under the same framework.”).

As described, Foster’s allegations regarding “[h]arassing,” “coercing,” “targeting,” or

“threatening” behavior are all conclusory and without specific factual allegations to support them.

Such conclusory allegations are insufficient to survive a motion to dismiss. See Papasan, 478 U.S.

at 286; Holloway v. Garland, No. 24-cv-226, 2025 WL 14137, at *12 (D.D.C. 2025) (dismissing

plaintiff’s hostile work environment claim because “none of [plaintiff’s] allegations contain any

facts or evidence to allow the drawing of any reasonable inferences, that any of the actions alleged

were due to any of plaintiff’s claimed protected categories, beyond plaintiff’s conclusory say so”);

Johnson v. District of Columbia, 49 F. Supp. 3d 115, 121 (D.D.C. 2014) (finding plaintiff failed to

state a claim where plaintiff made “wholly conclusory” allegations and noting that such allegations

“are not entitled to the presumption of truth”) (quoting Iqbal, 556 U.S. at 679).

Foster’s complaint does describe two specific conversations with her supervisor. In one

conversation in January 2022, the supervisor contacted her after she had announced her intent to seek a religious accommodation but apparently failed to file the required attestation form and told

Foster he “would hate to lose [Foster] as an employee if she didn’t comply” with the vaccination

policy. ECF No. 1 ¶ 25. In the second conversation, which took place in April 2022 after Foster

did not seek an accommodation under the new process and was denied travel, her supervisor told

her that she could get approval for travel if she sought an exemption and that he would “fully

support” her if she wanted to do that. Id. ¶ 34.

It is not clear that these two conversations could give rise to a reasonable inference of

hostility, let alone hostility sufficiently “severe or pervasive” to “create an abusive working

environment.” Baloch, 550 F.3d at 1201; see Dixon v. Yellen, No. 22-cv-3496, 2024 WL 1831967,

at *4 (D.D.C. Mar. 21, 2024) (holding that “frequent communications urging staff to get

vaccinated, some of which ‘emphasized the use of discipline’ for unvaccinated employees,” and a

supervisor’s “peer pressure” to get vaccinated did not amount to a hostile work environment).

Accordingly, Foster has not adequately alleged a Title VII hostile work environment claim. 5

III. Conclusion

For these reasons, the Court grants the motion to dismiss, the motion for summary

judgment in the alternative is denied as moot and the complaint is dismissed without prejudice. A

separate order consistent with this decision accompanies this memorandum opinion.

AMIR H. ALI United States District Judge

Date: April 14, 2025

5 That Foster appears to have largely copied and pasted conclusory assertions from her Rehabilitation Act claim to her Title VII claim reinforces the lack of specificity. ECF No. 1 ¶¶ 126–143.