Said v. Nat'l R.R. Passenger Corp. (317 F. Supp. 3d 304, 2018)

REGGIE B. WALTON, United States District Judge

The plaintiff, Cheryl Renee Said, instituted this civil action against the defendant, the National Railroad Passenger Corporation ("Amtrak"), alleging violations of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e-2 to - 7 (2012) ("Title VII"), § 1981 of the Civil Rights Act of 1866, as amended, 42 U.S.C. § 1981, the District of Columbia Human Rights Act ("DCHRA"), D.C. Code § 2-1402.11(a)(1) (2012), the Due Process Clause of the Fifth Amendment to the United States Constitution, District of Columbia public policy, and District of Columbia common law. See Complaint ("Compl.") ¶¶ 3, 64. Currently before the Court is the Defendant's Motion for Summary Judgment ("Def.'s Mot."). Upon careful consideration of the parties' submissions, the Court concludes that it must grant in part and deny in part the defendant's motion.

I. BACKGROUND

As an initial matter, the defendant argues that the Plaintiff's Statement of Disputed Facts fails to comply with the Federal Rules of Civil Procedure and the local rules of this Court, and therefore, "the Court should ... not accept any argument [raised] therein as creating a factual dispute that may defeat [its] motion, deem each of [its] factual statements as admitted, and grant summary judgment in [its] favor on the record evidence it presents in support of its motion." Def.'s Reply at 3. The defendant further argues that "the Court should disregard all of the unsupported 'facts' and unauthenticated exhibits [the p]laintiff relies upon in opposing [its] motion," emphasizing that the plaintiff has "not set[ ] forth any of her 'facts' in her [s]eparate [s]tatement[, and] has complied with none of the[ ] requirements [in the federal and local rules] for the purported 'facts' in her brief." Id. at 4.

The Court agrees with the defendant that the plaintiff's submissions to the Court fail to comply with both the federal and local rules in a number of respects. The Plaintiff's Statement of Disputed Facts fails to comply with Local Rule 7(h), which requires "[a]n opposition ... [to include] a separate concise statement of genuine issues setting forth all material facts as to which it is contended there exists a genuine issue necessary to be litigated, ... [and] references to the parts of the record relied on to support the statement," LcvR 7(h)(1), and also Federal Rule of Civil Procedure 56(c)(1), which similarly requires that "[a] party asserting that a fact ... is genuinely disputed must support the assertion by [ ] citing to particular parts of materials in the record," Fed. R. Civ. P. 56(c)(1). Although the Plaintiff's Statement of Disputed Facts purports to identify seven broad "issues" in dispute, it fails to set forth any statements of fact or provide any corresponding citations to the record. See, e.g., Pl.'s Disputed Facts ¶ 4 (asserting merely that "[t]here is a genuine material issue of fact in dispute as to whether [the d]efendant's claimed reason for terminating [the p]laintiff[ ] was a pretext and a cover up"). Furthermore, the Plaintiff's Statement of Disputed Facts fails to specifically respond to the individual statements of fact asserted in the Defendant's Statement of Undisputed Facts. See id. at 2 (generally asserting only that "[w]ith the exception of [ ] nos. 1-6, ... [the d]efendant[']s undisputed facts are arguments, and as such [the p]laintiff disputes [the d]efendant[']s claimed [u]ndisputed facts"). Moreover, although "the 2010 amendments to Federal Rule of Civil Procedure 56 eliminated the unequivocal requirement that documents submitted in support of a summary judgment motion [or opposition] must be authenticated," Akers v. Beal Bank, 845 F.Supp.2d 238, 243 (D.D.C. 2012) (internal quotation marks omitted), it is still the plaintiff's "burden [as] the proponent [of the material cited to support or dispute a fact] to show that the material is admissible as presented or to explain the admissible form that is anticipated," Fed. R. Civ. P. 56(c)(2) advisory committee's note to 2010 Amendment, subsection c, and the plaintiff has failed to do that here, at least not in a manner that is apparent to the Court. And finally, the defendant is correct that aside from intermittent citations to these same exhibits, the plaintiff's opposition is almost entirely devoid of citations to the record. See generally Pl.'s Opp'n.

Although the Court is troubled by the plaintiff's counsel's non-compliance, which "makes the work of the Court more onerous," Lawrence v. Lew, 156 F.Supp.3d 149, 155-56 (D.D.C. 2016), in the interest of resolving the defendant's summary judgment motion without further delay, and because "strong policies favor the resolution of genuine disputes on their merits," Jackson v. Beech, 636 F.2d 831, 832 (D.C. Cir. 1980), the Court declines to "disregard" all of the plaintiff's facts and exhibits or deem the Defendant's Statement of Undisputed Facts admitted. Rather, the Court will consider the plaintiff's facts and exhibits to the extent that they are relevant and supported by evidence in the record that is readily identifiable by the Court. See Fed. R. Civ. P. 56(c)(3) ("The court need consider only the cited materials, but it may consider other materials in the record."); see also Chambliss v. Nat'l R.R. Passenger Corp., Civ. Action No. 05-2490 (CKK), 2007 WL 581900, at *2 (D.D.C. Feb. 20, 2007) ("Despite [the p]laintiff's abject failure to comply with his obligations under Local Civil Rule 56.1..., in the interest of justice, the Court has nevertheless undertaken a review of the record evidence ... in order to determine whether that evidence raises genuine issues of fact."). Furthermore, the Court will make an independent assessment as to whether the facts in the Defendant's Statement of Undisputed Facts are indeed undisputed by the plaintiff. See Fed. R. Civ. P. 56(e) ("If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact ..., the court may [ ] ... consider the fact undisputed for purposes of the motion." (emphasis added) ).

Based on the Court's independent review of the record evidence, including the plaintiff's deposition testimony, the Court concludes that the following relevant facts are undisputed, with the exception of facts attributed solely to the plaintiff's deposition testimony or otherwise noted as an allegation by the plaintiff. The "[p]laintiff, an African American female," was employed by Amtrak as a Lead Service Attendant [ ] based out of Washington, D.C. Def.'s Facts ¶ 1 (footnote omitted); see also Def.'s Mot., Att. (Declaration of Joshua B. Waxman in Support of Defendant's Motion for Summary Judgment (Apr. 28, 2017) ("Waxman Decl.") ), Exhibit ("Ex.") A (Deposition Transcript of Cheryl Renee Said (Feb. 13, 2017) ) ("Said Dep.") 23:22-25. During the plaintiff's employment with Amtrak, she was a "member[ ] of a bargaining unit whose terms and conditions of employment [we]re governed by a collective bargaining agreement ('CBA') between Amtrak and [the] Amtrak Service Workers Council (... the 'Union')." Def.'s Facts ¶ 5; see also Said Dep. 30:14-25. The plaintiff's direct supervisor was On-Board Services Manager Phyllis McClinton, see Def.'s Facts ¶ 2; see also Said Dep. 26:16-18, an African American female, see Def.'s Facts ¶ 4, and Philip Ryan, a Caucasian male, was the Washington, D.C. Crew Base Manager, Def.'s Facts ¶¶ 44, 46; see also Said Dep. 79:25-80:2. "Per the [U]nion contract, [Ryan] was [also] the [plaintiff's] supervisor," Def.'s Mot., Att. (Waxman Decl.), Ex. C (DCOHR Interview with Phil Ryan, Crew Base Manager ("Ryan Interview") (Oct. 29, 2013) ) at DCOHR000038; however, he "was not [the p]laintiff's day-to-day supervisor," Def.'s Facts ¶ 46.

The plaintiff testified during her deposition that in 2010, "around two months before" February 2, 2011, see Said Dep. 89:9-10, she was "confronted" by Ryan, id. 87:17-21, who, according to the plaintiff, called her to his office because he "had assumed that [she] was not at [her] post, and he wanted to ... discipline [her]," id. 87:14-17. She testified that McClinton and a fellow Lead Service Agent, Lee Lockhart, a Caucasian male, were also present during the encounter, id. 87:17-21, 89:11-22, 92:25-93:1, and that Lockhart "spoke up for [her] to let [Ryan] know that [she] was where [she] was suppose[d] to be," id. 93:4-5. She further testified that "as [she was] leaving" Ryan's office, Ryan "mentioned to [her,] ... I thought it was you, because you all look alike." Id. 87:22-24. The plaintiff asserted that Lockhart was present when Ryan made this statement, id. 89:20-22, but "McClinton was not [with]in the distance where she could hear [Ryan's statement]" because she had left the office before the statement was made, id. 90:3-10.

On February 1, 2011, the plaintiff's husband died as a result of suffering an aneurysm, see id. 47:12-48:18, and "[o]n or about February 2, 2011, [the p]laintiff began a leave of absence due to her husband's death," Def.'s Facts ¶ 13; see also Said Dep. 51:8-13. "[A]bout a week later, [the plaintiff] spoke with [ ] McClinton by phone," Def.'s Facts ¶ 14, who, according to the plaintiff, informed the plaintiff "that [she] was putting [the plaintiff] on bereavement leave," Said Dep. 82:13-14. Then, on February 15, 2011, "McClinton [ ] submitted a request for [the p]laintiff to take a personal leave of absence." Def.'s Facts ¶ 14; see also Said Dep., Ex. 7 (Request for Leave of Absence/Return from Leave of Absence (Feb. 15, 2011) (the "February 15, 2011 Request") ). The request indicated that the leave of absence would have an "Effective Date" of February 20, 2011, and an "Estimated Return from [the Leave of Absence] Date" of March 1, 2011. Said Dep., Ex. 7 (February 15, 2011 Request).

The plaintiff testified that around two weeks after receiving McClinton's first phone call, McClinton contacted her again and informed her that she "was putting [the plaintiff] on [ ] personal leave." Id. 82:18-25. During that conversation, McClinton "[a]sked [the plaintiff] how [she] was feeling, and [the plaintiff] told [McClinton] that [she] was not feeling very well," to which McClinton responded "take all the time [you] need[ ]." Id. 83:5-9. The plaintiff further testified that she told McClinton that she "needed health insurance," and McClinton said "she would look into it." Id. 83:13-15. McClinton subsequently "called [the plaintiff] back about a week later," and told the plaintiff "that Amtrak was not able to insure [her] because [she] was on leave without pay," but again told her that she should "take all the time that [she] needed to get well to return to work." Id. 83:15-19.

On March 31, 2011, "[a]fter speaking with [the p]laintiff again by phone, [ ] McClinton submitted a request for an extension of [the p]laintiff's personal leave until April 30, 2011." Def.'s Facts. ¶ 17; see also Said Dep., Ex. 8 (Request for Leave of Absence/Return from Leave of Absence (Mar. 31, 2011) (the "March 31, 2011 Request") ). The request indicated that the leave of absence would have an "Effective Date" of March 26, 2011, and an "Estimated Return from [the Leave of Absence] Date" of April 30, 2011. Said Dep., Ex. 8 (March 31, 2011 Request). "[The p]laintiff and [ ] McClinton spoke again at some point in or around April 2011, at which time [ ] McClinton verbally extended [the p]laintiff's leave without a specific return date." Def.'s Facts ¶ 18 (citing Said Dep. 57:18-23); see also Said. Dep. 85:16-20 (testifying that she spoke to McClinton on the phone "sometime before early May 2011," when McClinton called her to "check[ ] to see how [she] was doing," and McClinton told her that "she[ ] [would] continue to put [her] on leave without pay").

On February 24, 2011, the plaintiff moved her residence from Washington, D.C. to Maryland. See id. 76:13-19, 84:11. The plaintiff testified that around the date of her move, she verbally notified an employee named Cassandra at Amtrak's "crew base" of her new address, see id. 107:21-108:24, 113:2, as well as another person at "the crew management base," id. 84:12-15, 113:2. She also testified that she "talked to someone" at Amtrak's Human Resources office in Wilmington, Delaware, id. 110:7-9, and "faxed [her] ... new address" to that office, id. 112:5-6. The plaintiff also testified that around the same time, she "gave [McClinton her new] address," id. 83:20-23, and "about one to two weeks later," she "received a [condolence] card" from McClinton at her new address, id. 84:1-2; see also Def.'s Facts ¶ 16. Furthermore, on April 29, 2011, the "[p]laintiff contacted the [Amtrak] Employee Service Center [ ] to change her address," Def.'s Facts ¶ 21; see also Said Dep., Ex. 12 (Record of April 29, 2011 conversation with Jacqueline King), and she "spoke with Human Capital Representative Jacqueline King," Def.'s Facts ¶ 23. Following that conversation, "King emailed [the p]laintiff a change-of-address form to complete," id. ¶ 24; however, the plaintiff testified that she did not remember if she filled out the change-of-address form and returned it, Said Dep. 115:12-15, and "Amtrak has no record of [the p]laintiff returning the change-of-address form that [ ] King sent her in April 2011," Def.'s Facts ¶ 27.

"In [or] about April 2011, Amtrak received correspondence from [the p]laintiff's husband's life insurance carrier (Security Mutual Life) requesting that Amtrak verify certain information." Id. ¶ 28. In "the first part of May [2011]," Said Dep. 85:10-15, Ryan "called [the p]laintiff on her phone (the number of which did not change when she moved) to ask if he could release information to the insurer," Def.'s Facts ¶ 29. "[The p]laintiff agreed, and [ ] Ryan [ ] responded to the insurer with the requested information." Id. ¶ 28; see also Def.'s Mot., Att. (Waxman Decl.), Ex. E (Deposition of Philip Roger Ryan (Feb. 23, 2017) ) ("Ryan Dep."), Ex. A (Letter from Philip Ryan, Manager, Washington Crew Base, to Security Mutual Life Insurance Company of New York (Apr. 15, 2011) ("Security Mutual letter") ) at 3.

"In or about July 2011, [the p]laintiff encountered [Assistant Superintendant Kathy] Brewer," McClinton's supervisor and an African American female, "at a grocery store." Def.'s Facts ¶¶ 4, 30. According to the plaintiff's testimony, she told Brewer that she "wasn't doing well at all," and Brewer told her to "take all the time you need to get well." Said Dep. 102:1217. The plaintiff also testified that Brewer told her that she "was able to receive disability benefits from the Railroad Retirement Board" (the "Board"), id. 102:19-22, which "administers benefits for all railroad[ ] [employees] in the United States, including Amtrak [employees]," Def.'s Facts ¶ 31. Thereafter, also "in or about July 2011," the plaintiff applied for sickness benefits from the Board, Def.'s Facts ¶ 34; see also Said Dep. 102:19-23, and "provided the [Board] with her [new] address[ ] and communicated with the [Board] via the address she provided," Def.'s Facts ¶ 34. The plaintiff further testified that she "started receiving [benefits] in August of 2011," Said Dep. 102:22-23, and while receiving these benefits, the Board periodically sent her forms, which she "sen[t] to [her] doctor to fill out about [her] condition [and] progress," id. 105:17-19, and then she returned the forms to the Board once they were completed, see id. 106:5-7.

In July 2011, McClinton also took a medical leave of absence, see Def.'s Mot., Att. (Waxman Decl.), Ex. B (DCOHR Interview with Phyllis McClinton, Supervisor (Nov. 14, 2013) ) at DCOHR000045; see also Def.'s Facts ¶ 3, during which time "On-Board Service Manager Patricia Baylor," an African American female, "assumed some of [ ] McClinton's supervisory responsibilities," Def.'s Facts ¶¶ 3-4. "At some point [thereafter] ..., it was brought to [ ] Baylor's attention that ... [the p]laintiff[ ] had been absent for an extended period of time." Id. ¶ 42. Baylor "tried by phone" to reach the plaintiff, but "wasn't able to reach her." Def.'s Mot., Att. (Waxman Decl.), Ex. D (DCOHR Interview with Patricia Baylor, On-Board Services Manager (Oct. 29, 2014) ("Baylor Interview") ) at DCOHR000041-42; see also Def.'s Facts ¶ 43 (stating that Baylor "tr[ied] to reach [the p]laintiff"). In addition, "Baylor contacted Amtrak's Medical Department to determine whether [the p]laintiff was on an approved medical leave, and she was told that Amtrak had no record of [the p]laintiff being on [medical] leave." Def.'s Facts ¶ 43.

On September 30, 2011, Baylor forwarded an e-mail to Ryan, which she also sent to Brewer, informing him that "[t]he department [had not] heard from [the plaintiff] concerning [her] absence from work for the past several months[, and that t]his is clearly a violation of the Attendance policy and [stated that] a Rule 24 letter [wa]s necessary at th[at] time." Ryan Dep., Ex. A (E-mail from Patricia Baylor to Philip Ryan (Sept. 30, 2011) (the "Sept. 30, 2011 E-mail") ) at 1. "Per [ ] Baylor's instruction ..., [ ] Ryan prepared a letter to [the p]laintiff ..., using the address on file in Amtrak's [ ] database," Def.'s Facts ¶ 47, which the plaintiff asserts was her former Washington, D.C. address, see Said Dep. 62:23-25 ("[A] letter had been sent to my old address, want[ing] to know my whereabouts, and where I had been[.]"), and "[p]rior to sending the letter, ... [he] contacted Amtrak's Human Resources Department to confirm [the p]laintiff's address," Def.'s Facts ¶ 47. Thereafter, "Ryan sent the [ ] letter to [the p]laintiff via Federal Express ..., copying [ ] Baylor and [ ] Brewer, as well as Dwayne Bateman, [the p]laintiff's Union representative." Id. ¶ 48. In the letter, dated October 12, 2011, Ryan "advised [the plaintiff] that the Medical Department ha[d] not received an update for [her] absence from work," and that "[i]n order to continue [her] absence, [she was] instructed to contact the Medical Department immediately and provide whatever documentation necessary to update [her] records." Said Dep., Ex. 18 (Letter from Philip Ryan, Manager, Washington Crew Base, to Cheryl Said (October 12, 2011) (the "Rule 24 notification letter") ). It further warned that

failure to comply with these instructions will invoke Rule 24 of the [Union] contract, which reads in part ... ["]Employees who are absent from work for [ten] days without notifying the company[ ] shall be considered resigned from the corporation, unless the corporation is furnished satisfactory evidence that the failure is due to circumstances beyond their control."

Id., Ex. 18 (Rule 24 notification letter) (omission in original). The Rule 24 notification "letter was returned to Amtrak as undeliverable." Def.'s Facts ¶ 50. As a result of the letter being returned, Ryan "contacted [ ] Bateman to determine whether the [Union] had a different address for [the p]laintiff," but "Bateman advised [him] that the [Union] had the same address on file that Amtrak had." Id. However, "Ryan did not attempt to contact [the p]laintiff by [ ]phone," consistent with "Amtrak's policy to send Rule 24 communications exclusively in writing, so as to have a clear record of the same." Id. ¶ 51.

On November 4, 2011, "[b]ecause [the p]laintiff did not respond to the [ ] Rule 24 [notification] letter," id. ¶ 52, Ryan sent a second letter to the plaintiff, which served as "official notification that [the plaintiff was] [ ] considered resigned," Said Dep., Ex. 19 (Letter from Philip Ryan, Manager, Washington Crew Base, to Cheryl Said (Nov. 4, 2011) (the "Rule 24 termination letter") ). Specifically, the letter stated:

There has been no response or notification of your prolonged absence from work at Amtrak. In a letter sent to you on October 12, 2011, ... you were instructed to notify the corporation [of] your absence. In the letter, you were informed that failure to do so w[ould] invoke Rule 24 of the [Union] contract, and you w[ould] be considered as resigned from the corporation.

Id., Ex. 19 (Rule 24 termination letter). "On November 7, 2011, [the p]laintiff's termination was recorded by Amtrak as an 'involuntary separation,' effective November 4, 2011, without eligibility for rehire[,]" Def.'s Facts ¶ 53, with the reason recorded as "No Return from [Leave of Absence]," Ryan Dep., Ex. D (Involuntary Separation form). The plaintiff testified that she "never received" either of the Rule 24 letters from the defendant. Said Dep. 124:3-4.

"On or about February 7, 2012, [the p]laintiff appeared at the Washington[,] D.C. crew base," Def.'s Facts ¶ 55 (footnote omitted), "to let the[ ] [defendant] know that [her] doctor had released [her] to return back to work on February 19," Said Dep. 62:4-6. However, "Ryan advised [the plaintiff] that her employment had been terminated," Def.'s Facts ¶ 55, and he further "advised [her] to discuss the situation with her Union and provided her with [ ] Bateman's [ ]phone number," id. ¶ 56; see also Said Dep. 62:10-14. The "[p]laintiff contacted ... Bateman," Def.'s Facts ¶ 61; see also Said Dep. 62:16-18, and informed him that she "had just found out that [she] had been terminated," Said Dep. 62:20-21. Thereafter, the Union "advised her that [it] would not file a grievance on her behalf," Def.'s Facts ¶ 61, and the "[p]laintiff did not pursue her grievance to the National Railroad Adjustment Board or public law board," id. ¶ 63; see also Said Dep. 66:14-21 (acknowledging that she did not file a formal grievance).

On January 30, 2013, the plaintiff submitted an Intake Questionnaire to the District of Columbia Office of Human Rights ("DCOHR"), see Def.'s Facts ¶ 64; see also Def.'s Mot., Att. (Waxman Decl.), Ex. F (Employment Intake Questionnaire) at DCOHR000019, and, on May 30, 2013, she filed a Charge of Discrimination with the DCOHR, in which she alleged that the defendant had unlawfully terminated her employment based on her race, gender, and disability, see Def.'s Facts ¶ 65. On or about January 13, 2014, the DCOHR issued a determination letter, id. ¶ 67, which found "no probable cause to believe" the plaintiff's claims, Def.'s Mot., Att. (Waxman Decl.), Ex. G (Letter of Determination-No Cause Finding (Jan. 13, 2014) ) at DCOHR000079. Thereafter, on May 4, 2015, the plaintiff alleges that the Equal Employment Opportunity Commission ("EEOC") mailed her a "Dismissal and Notice of Rights" letter. Compl., Ex. A (Dismissal and Notice of Rights) at 1. The plaintiff filed this suit on August 11, 2015. See Compl. at 1.

II. STANDARD OF REVIEW

Courts will grant a motion for summary judgment under Federal Rule of Civil Procedure 56(a)"if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). When ruling on a Rule 56(a) motion, the Court must view the evidence in the light most favorable to the non-moving party.

Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006) (citing Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) ). The Court must therefore draw "all justifiable inferences" in the non-moving party's favor and accept the non-moving party's evidence as true. Anderson v. Liberty Lobby, 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

In responding to a motion for summary judgment, the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Accordingly, the non-moving party must not rely on "mere allegations or denials ... but ... must set forth specific facts showing that there [are] [ ] genuine issue[s] for trial." Anderson, 477 U.S. at 248, 106 S.Ct. 2505 (second omission in original) (citation and internal quotation marks omitted). Thus, "[t]he mere existence of a scintilla of evidence in support of the [non-moving party's] position [is] insufficient" to withstand a motion for summary judgment, as "there must be [some] evidence on which the jury could reasonably find for the [non-movant]." Id. at 252, 106 S.Ct. 2505.

III. ANALYSIS

A. The Plaintiff's Title VII Claims

The defendant argues that the plaintiff's Title VII claims are time-barred "[b]ecause [the p]laintiff did not file her Charge [of Discrimination] (or even initiate the administrative process via the intake questionnaire) until well after [the three-hundred-]day[ ] [statutorily required administrative filing period] had elapsed." Def.'s Mem. at 4. The Court agrees.

The District of Columbia Circuit has made clear that "Title VII '[c]omplainants must timely exhaust the[ir] administrative remedies before bringing their claims to court.' " Payne v. Salazar, 619 F.3d 56, 65 (D.C. Cir. 2010) (alterations in original) (quoting Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997) ). To exhaust her administrative remedies, "a complainant must file a charge of discrimination with the EEOC within [three hundred] days of [the alleged unlawful] practice if the complainant 'has initially instituted proceedings with a State or local agency with authority to grant or seek relief from such practice.' " Lattisaw v. District of Columbia, 118 F.Supp.3d 142, 154 (D.D.C. 2015) (quoting 42 U.S.C. § 2000e-5(e)(1) ); see also Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002) ("[A]n employee who initially files a grievance with [a state] agency must file the charge with the EEOC within [three hundred] days of the employment practice.").

Here, the parties agree that the plaintiff initially instituted the proceedings in this case by filing an Intake Questionnaire with the DCOHR, see Def.'s Facts ¶ 64; Pl.'s Opp'n at 7, and that the statutory period for filing an administrative charge with the EEOC commenced on the day when the plaintiff first learned about her termination, see Def.'s Mem. at 4; Pl.'s Opp'n at 8, which the plaintiff testified was February 7, 2012, see Said Dep. 61:2-3.

Therefore, the plaintiff was required to file her charge of discrimination with the EEOC within three hundred days thereafter, or by December 3, 2012. Curiously, neither party has provided the Court with a date when the plaintiff filed a charge of discrimination with the EEOC, and the plaintiff actually insists that she "did not file her Complaint with the EEOC," but rather that "[h]er Complaint was only sent to the EEOC for 'substantial review' of the DCOHR decision which [she] challenged." Pl.'s Opp'n at 7. However, the DCOHR's Letter of Determination submitted by the defendant suggests that a charge of discrimination was indeed filed with the EEOC, as the letter purports to relate to an "EEOC No." of "10C-2013-00242," see Def.'s Mot., Att. (Waxman Decl.), Ex. G (Letter of Determination-No Cause Finding) at 1, and the EEOC Dismissal and Notice of Rights letter attached to the plaintiff's Complaint refers to an "EEOC Charge No." that matches the "EEOC No." recorded by the DCOHR, see Compl., Ex. A (Dismissal and Notice of Rights) at 1. Nonetheless, it appears that any EEOC charge was not timely filed. The plaintiff's "EEOC Charge No.," which contains a reference to the year "2013," suggests that the charge was filed in that year, and therefore could not have been filed until January 1, 2013 at the earliest, approximately one month past the statutory deadline. Alternatively, the plaintiff's assertion that she "did not file her Complaint with the EEOC," Pl.'s Opp'n at 7, suggests that her EEOC charge was automatically generated pursuant to "the worksharing agreement between the ... [ ]DCOHR[ ] and the EEOC, ... [which] operates so that '[c]harges received by one agency under the agreement shall be deemed received by the other agency,' " Miller v. Gray, 52 F.Supp.3d 62, 68 (D.D.C. 2014) (third alteration in original) (quoting Schuler v. PricewaterhouseCoopers LLP, 514 F.3d 1365, 1372 (D.C. Cir. 2008) ). And, because the plaintiff does not dispute that she did not initiate the DCOHR proceedings related to her case until January 20, 2013, when she filed her Intake Questionnaire, see Pl.'s Opp'n, Ex. B (Employment Intake Questionnaire) at DCOHR000019, and that she did not file her DCOHR charge until May 30, 2013, see Def.'s Facts ¶ 65, her EEOC charge could not have been "cross-filed" prior to those dates, which are nearly two months and six months after the expiration of the statutory period, respectively. Therefore, in the absence of any evidence suggesting the contrary, the Court must conclude that any EEOC charge related to the plaintiff's case was not timely filed.

Nonetheless, the plaintiff argues that her claims are timely because she "filed her discrimination [c]omplaint with the ... [ ]DCOHR[ ], [and] the limitation[s] period under D[.]C[.] [ ] law is one year." Pl.'s Opp'n at 7. However, as the defendant correctly notes, the Supreme Court has foreclosed the plaintiff's argument that any statute of limitations provided in the D.C. Code applies to a Title VII claim. See Def.'s Reply at 5 (citing EEOC v. Comm. Office Prods. Co., 486 U.S. 107, 123, 108 S.Ct. 1666, 100 L.Ed.2d 96 (1988) ); see also Comm. Office Prods. Co., 486 U.S. at 123, 108 S.Ct. 1666 ("[S]tate time limits for filing discrimination claims do not determine the applicable federal time limit."). Consequently, because the plaintiff did not timely file a charge of discrimination with the EEOC, her Title VII claims are time-barred. See Dyson v. District of Columbia, 808 F.Supp.2d 84, 87 (D.D.C. 2011) (dismissing the plaintiff's Title VII claims as untimely because the plaintiff did not file her EEOC charge within the three-hundred-day time period).

B. The Plaintiff's Section 1981 Race Discrimination Claim

The defendant argues that the plaintiff's discrimination claim under 42 U.S.C. § 1981 must "fail because Amtrak has proffered a legitimate, non[ ]discriminatory reason for [the p]laintiff's termination, which she cannot demonstrate was pretextual." Def.'s Mem. at 6. The plaintiff responds that the "[d]efendant's reason[ ] for terminating her ... is [ ] pretext and [a] cover up [and i]t is a lie that [the d]efendant did not know ... that [she] was absent from work due to illness." Pl.'s Opp'n at 9. For the reasons explained below, the Court concludes that the plaintiff's race discrimination claim under § 1981 survives summary judgment, albeit barely, considering the position this Circuit has taken in prior cases.

Section 1981 prohibits racial discrimination in the "making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship." 42 U.S.C. § 1981(b). "[I]n order for [the p]laintiff's claims under ... [s]ection 1981 to survive summary judgment, [she] must provide direct or circumstantial evidence of [the d]efendant['s] discriminatory intent." Telesford v. Md. Provo-I Med. Servs., P.C., 204 F.Supp.3d 120, 128 (D.D.C. 2016). Direct evidence, "for example, a statement that itself shows racial or gender bias in the decision," "generally entitle[s] a plaintiff to a jury trial." Vatel v. All. of Auto Mfrs., 627 F.3d 1245, 1246-47 (D.C. Cir. 2011). However, "[i]f a ... plaintiff does not proffer direct evidence of discrimination, '[courts] apply the analytical framework adopted by the Supreme Court in McDonnell Douglas.'" Hairston v. Vance-Cooks, 773 F.3d 266, 272 (D.C. Cir. 2014) (quoting Ginger v. District of Columbia, 527 F.3d 1340, 1344 (D.C. Cir. 2008) ); see also Carney v. Am. Univ., 151 F.3d 1090, 1092-93 (D.C. Cir. 1998) (applying the McDonnell Douglas framework to a plaintiff's section 1981 claim). Under this framework, the plaintiff bears the initial burden of establishing a prima facie case of discrimination, see Reeves, 530 U.S. at 142, 120 S.Ct. 2097, and if the plaintiff establishes a prima facie case, "[t]he burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason for the [adverse employment action]," McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). However, this Circuit has instructed that once the employer offers a legitimate, nondiscriminatory justification for its action, "the McDonnell Douglas framework-with its presumptions and burdens-disappears, and the sole remaining issue is discrimination vel non." Jackson v. Gonzales, 496 F.3d 703, 707 (D.C. Cir. 2007) (citation and quotation marks omitted). In other words, when the "employer has asserted a legitimate, non[ ]discriminatory reason for" an adverse employment action in the context of a summary judgment motion, "the district court need not-and should not-decide whether the plaintiff actually made out a prima facie case under McDonnell Douglas." Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008). Rather, the district court must evaluate only whether "the employee [has] produced sufficient evidence for a reasonable jury to find that the [employer's] asserted non[ ]discriminatory reason [for the adverse action] was not the actual reason and that the [employer] intentionally discriminated against the [employee] on the basis of race." Id. To make this showing, the plaintiff must produce evidence "showing either 'that a discriminatory reason more likely motivated the employer or ... that the employer's proffered explanation is unworthy of credence.' " Oviedo v. Wash. Metro. Area Transit Auth., 299 F.Supp.3d 50, 60 (D.D.C. 2018) (quoting Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) ).

Here, the defendant has asserted legitimate, nondiscriminatory reasons for the plaintiff's termination, alleging that the

[p]laintiff was terminated pursuant to Rule 24 of the [Union's] CBA after failing to communicate with Amtrak during her extended leave of absence, failing to advise Amtrak of the reason she continued to be on leave or her expected return date, and failing to respond to correspondence from Amtrak regarding the same.

Def.'s Mem. at 6. Consequently, the Court must consider whether the plaintiff has produced sufficient evidence for a reasonable jury to infer that these reasons provided by the defendant for the plaintiff's termination are "pretextual and that this pretext shielded discriminatory motives." Jackson, 496 F.3d at 707. For the reasons explained below, the Court concludes that the plaintiff has satisfied her burden.

1. Ryan's Alleged Discriminatory Statement

"[E]vidence, direct or circumstantial, that permits an inference of discrimination ... include[s] discriminatory statements by the employer, or other attitudes suggesting the decision maker harbors discriminatory animus."

Holcomb, 433 F.3d at 899 (citations omitted). As evidence of the defendant's discriminatory intent, the plaintiff proffers her testimony regarding the remark Ryan allegedly made to her that "I thought it was you. You all look alike," see Said Dep. 93:6-7, which she argues demonstrates that "Ryan had [ ] discriminatory animus against her," Pl.'s Opp'n at 24. According to the plaintiff's testimony, Ryan made the comment after "confront[ing]" her in his office because he "had assumed that [she] was not at [her] post, and he wanted to ... discipline [her]." Said Dep. 87:15-21. She further testified that Ryan "might have mistake[n] [her] for another [b]lack [ ] female, but it [was not her] that ... was [not] at [her] post." Id. 94:1-3.

The plaintiff has not explicitly argued that Ryan's comment constitutes direct evidence of discrimination. See generally Pl.'s Opp'n. However, even if she had raised this argument, it would fail. "To qualify as direct evidence, a statement or remark must 'itself show[ ] ... bias in the employment decision.' " Conn v. Am. Nat'l Red Cross, 149 F.Supp.3d 136, 146 (D.D.C. 2016) (alteration in original) (quoting Wilson v. Cox, 753 F.3d 244, 247 (D.C. Cir. 2014) ). In other words, "direct evidence is evidence that, if believed by the fact finder, proves the particular fact in question without any need for inference." Hajjar-Nejad v. George Wash. Univ., 37 F.Supp.3d 90, 125 (D.D.C. 2014) (quoting Lemmons v. Georgetown Univ. Hosp., 431 F.Supp.2d 76, 86 (D.D.C. 2006) (Walton, J.) ). Ryan's alleged remark that "[y]ou all look alike," Said Dep. 93:6-8, "is ambiguous and does not clearly refer to [the p]laintiff's [race]," Hajjar-Nejad, 37 F.Supp.3d at 125. Therefore, an inference is required to conclude that Ryan was referring to the plaintiff's race, "rather than some other distinction between himself and [the p]laintiff." Id. Accordingly, the alleged remark does not constitute direct evidence. See Breen v. Chao, 253 F.Supp.3d 244, 258 n.9 (D.D.C. 2017) (concluding that alleged comments regarding the plaintiff's age did not constitute direct evidence of age discrimination because "they [we]re subject to multiple interpretations").

However, the Court concludes that Ryan's alleged comment does constitute indirect evidence of discrimination that must be considered by the Court in conjunction with the other evidence proffered by the plaintiff. To constitute indirect evidence, a statement need not "express[ ] [ ] bias on [its] face," but "[d]iscrimination [may] instead be inferred from the statement based on what was said and the surrounding circumstances." Conn, 149 F.Supp.3d at 146-47. Although the purported statement by Ryan that "[y]ou all look alike" does not definitively warrant a finding of racial bias, viewing this comment in the light most favorable to the plaintiff, and in light of the circumstances in which she alleges it was made, see Said Dep. 87:15-21, 94:1-3 (asserting that it was made after Ryan "confronted" her in his office because he "had assumed that [she] was not at [her] post, and he wanted to ... discipline [her,]" "but it [was not her] that ... was [not] at [her] post"), the Court finds that a reasonable jury could interpret the comment as reflecting a racially distorted image of the appearance of all African American women, see Gaddy v. Phila. Hous. Auth., Civ. Action No. 06-4570 (TRR), 2008 WL 2928485, at *5-6 (E.D. Pa. July 28, 2008) (concluding that a reasonable jury could conclude that an African American plaintiff's supervisor acted with discriminatory intent, in part because the supervisor's comment to the plaintiff that "you all look alike" was made after the supervisor had accused the plaintiff of being discourteous on the job and the plaintiff informed the supervisor that she had not been working when the alleged incident occurred). In other words, the Court "cannot conclude with confidence at this stage that no reasonable juror could accept [the plaintiff]'s interpretation" of the alleged disparaging remark. Uzoukwu v. Metro. Wash. COG, 130 F.Supp.3d 403, 414 (D.D.C. 2015).

The defendant raises a number of challenges to the plaintiff's testimony regarding Ryan's alleged comment, none of which is persuasive. First, the defendant argues that "aside from [the p]laintiff's self-serving testimony, there is no evidence that [Ryan] ever made such a comment." Def.'s Mem. at 10. However, this argument fails in light of this Circuit's agreement with the Third Circuit that "there is no rule of law that the testimony of a discrimination plaintiff, standing alone, can never make out a case of discrimination that could withstand a summary judgment motion." George v. Leavitt, 407 F.3d 405, 414 (D.C. Cir. 2005) (quoting Weldon v. Kraft, Inc., 896 F.2d 793, 800 (3d Cir. 1990) ). Additionally, the defendant asserts that the "[p]laintiff admits that she did not complain to Amtrak about the purported comment[,] and the co-worker and supervisor who [the p]laintiff claims [were] present when [ ] Ryan allegedly made the comment deny any recollection of it." Def.'s Mem. at 10. However, this argument also fails because such attempts to undermine the plaintiff's credibility or the weight her testimony is entitled to receive are inappropriate factors for the Court to consider at the summary judgment stage. See Anderson, 477 U.S. at 255, 106 S.Ct. 2505 ("Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge ....").

The defendant next argues that even if Ryan made the comment, it is insufficient to establish discrimination because "the undisputed evidence demonstrates that [Ryan] was not a decision[ ]maker with respect to her termination," Def.'s Mem. at 10; see also Def.'s Reply at 11-12, given that "Baylor [ ] made the decision to terminate [the p]laintiff's employment," Def.'s Reply at 12, by "instructi[ng] ... Ryan [to] prepare[ ]" the Rule 24 notification letter that was sent to the plaintiff, Def.'s Facts ¶ 47. Additionally, the defendant argues that Ryan's comment lacks probative value because "it was remote in time from [the plaintiff's] termination, was completely unrelated to [her termination], and [the p]laintiff does not allege that any discriminatory conduct or comments took place in the interim." Def.'s Mem. at 10 (internal citations omitted).

It is well established that "an isolated race-based remark unrelated to the relevant employment decision [does not], without more, permit a jury to infer discrimination." Morris v. McCarthy, 825 F.3d 658, 669 (D.C. Cir. 2016) (internal citation omitted). Therefore, to establish discrimination based on a "stray workplace remark," a plaintiff must generally show "a clear nexus between the ... remark[ ] and the [termination,] ... [which] can be shown if the remark was made by an individual with the power to influence [the p]laintiff's termination[ ] and ... was temporally close in time to the termination." Ajisefinni v. KPMG LLP, 17 F.Supp.3d 28, 44 (D.D.C. 2014) (fourth alteration in original) (citation omitted). However, the Supreme Court and this Circuit have "caution[ed] lower courts against discounting discriminatory statements 'not made in the direct context' of the challenged employment action," Morris, 825 F.3d at 670 (quoting Reeves, 530 U.S. at 152-53, 120 S.Ct. 2097 ), or "made significantly before the relevant employment action," id. As this Circuit explained in Morris,

[e]ven if such a statement carries less weight than one made at the time of the [adverse employment action], it is nonetheless probative evidence of a supervisor's discriminatory attitude, at least when it is targeted directly at the plaintiff or is one of a pattern of similar remarks. Instead of reviewing each racially charged remark individually and finding it insufficient, [courts must] consider it alongside any additional statements-and all other evidence-to determine whether a plaintiff has met her burden.

Id. (citation omitted).

First, the Court concludes that the facts in the record could lead a reasonable jury to conclude that Ryan had "the power to influence [the p]laintiff's termination." Ajisefinni, 17 F.Supp.3d at 44. Even accepting as true that Baylor, not Ryan, made the decision to send the Rule 24 notification letter, a fact that the plaintiff has not directly disputed, see generally Pl.'s Opp'n, it is clear that Ryan actively participated in the termination process by preparing, signing, and sending the defendant's Rule 24 correspondence, see Def.'s Facts ¶¶ 47-48, 52. Furthermore, after the Rule 24 notification letter was returned as undeliverable, it appears that Ryan took a number of steps on his own without any instruction from Baylor or anyone else, including contacting Bateman to identify the plaintiff's correct address, see Def.'s Facts ¶ 50 (asserting that "[a]fter [ ] Ryan's October 12, 2011 letter was returned to Amtrak undeliverable, he contacted [ ] Bateman to determine whether the [Union] had a different address for [the p]laintiff." (emphasis added) ), and notably, preparing and sending the letter that ultimately terminated the plaintiff's employment, see id. ¶ 52 ("Because [the p]laintiff did not respond to the October 1[2], 2011 [ ] letter, [ ] Ryan followed up with a November 4, 2011 letter[.]" (emphasis added) ). Although the defendant attempts to minimize Ryan's role in the plaintiff's termination by describing his "responsib[ility] for ... issuing Rule 24 letters" as merely "administrative," id. ¶ 45, and asserting that Ryan "was not [the p]laintiff's day-to-day supervisor," id. ¶ 46, as the plaintiff notes, see Pl.'s Opp'n at 27, Ryan admitted in his DCOHR interview that "[p]er the union contract, [he] was [the plaintiff's] supervisor," Def.'s Mot., Att. (Waxman Decl.), Ex. C (Ryan Interview) at DCOHR000038. In light of all of these facts, a reasonable jury could conclude that Ryan had the power to influence the decisionmaking process regarding the plaintiff's termination. See Threadgill v. Spellings, 377 F.Supp.2d 158, 165 (D.D.C. 2005) ("When one with a discriminatory animus participates in the decision making process together with others, the court cannot say conclusively that those others were completely insulated from [ ]his influence." (citing Griffin v. Wash. Convention Ctr., 142 F.3d 1308, 1311 (D.C. Cir. 1998) ).

Second, the Court disagrees with the defendant that Ryan's alleged remark is too "remote in time from [the plaintiff's] termination" to be probative. Def.'s Mem. at 10. The plaintiff testified that Ryan's comment was made approximately two months before she began her leave of absence on February 2, 2011, see Said Dep. 89:9-10, and therefore, was allegedly made approximately eleven months before her termination on November 4, 2011, see Def.'s Facts ¶ 52. Although eleven months is a significant period of time, this Circuit has instructed that "[e]ven if [ ] a statement [made significantly before the relevant employment action] carries less weight than one made at the time of the [action], it is nonetheless probative evidence of a supervisor's discriminatory attitude, at least when it is targeted directly at the plaintiff." Morris, 825 F.3d at 670 (considering racially charged remarks allegedly made by the plaintiff's supervisors as early as three years prior to the challenged suspension). Here, the plaintiff alleges that the remark was targeted directly at her. See Said Dep. 87:22-24 (asserting that Ryan "mentioned to [her] ... I thought it was you, because you all look alike"). Additionally, contrary to the defendant's contention, see Def.'s Mem. at 10, the fact that there is no evidence in the record that Ryan made any other race-based comments to or about the plaintiff during the eleven months between Ryan's alleged remark and the plaintiff's termination is not particularly probative given that for nine of these months, the plaintiff was not at work and the record reflects that her contact with Ryan was limited to a single phone call in May 2011, see Said Dep. 85:10-15. Although evidence of additional race-based comments by Ryan would certainly bolster the plaintiff's showing of discriminatory intent, the Court cannot conclude that the absence of additional comments, especially under these circumstances, forecloses an inference of racial animus.

In sum, the Court concludes that Ryan's alleged remark is evidence of Ryan's discriminatory intent that must be "consider[ed] alongside ... all other evidence[ ] to determine whether [the] plaintiff has met her burden." Morris, 825 F.3d at 670 (citing Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1290 (D.C. Cir. 1998) ). And, for the reasons explained in the following section of this memorandum opinion, the Court concludes that Ryan's alleged statement, combined with the plaintiff's evidence casting doubt on the defendant's proffered reasons for the plaintiff's termination, is sufficient to satisfy her burden necessary to avoid summary judgment.

2. Evidence Challenging the Defendant's Proffered Reasons for the Plaintiff's Termination

"Proof that the defendant's explanation is unworthy of credence is [another]

form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive." Reeves, 530 U.S. at 147, 120 S.Ct. 2097. Indeed, "[i]n appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose." Id.; see also St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 517, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993) ("[P]roving the employer's reason false becomes part of (and often considerably assists) the greater enterprise of proving that the real reason was intentional discrimination."); Aka, 156 F.3d at 1290 ("[A] plaintiff's discrediting of an employer's stated reason for its employment decision is entitled to considerable weight.").

As previously indicated, the defendant asserts that

[the p]laintiff was terminated pursuant to Rule 24 of the [Union's] CBA after failing to communicate with Amtrak during her extended leave of absence, failing to advise Amtrak of the reason she continued to be on leave or her expected return date, and failing to respond to correspondence from Amtrak regarding the same.

Def.'s Mem. at 6. Rule 24 of the CBA, which governs "Unauthorized Absence," states that "[e]mployees who are absent from work for ten [ ] days without notifying [Amtrak] shall be considered as having resigned from the service, unless [Amtrak] is furnished satisfactory evidence that circumstances beyond their control prevented such notification." Said Dep., Ex. 3 (CBA) at 30.

The plaintiff disputes each of the defendant's proffered reasons for her termination. See generally Pl.'s Opp'n. The defendant responds that the plaintiff has failed "to offer credible evidence that Amtrak's proffered reason for her termination was unworthy of credence ... because she can offer nothing but her own self-serving speculation that anyone at Amtrak-let alone everyone at Amtrak-is lying." Def.'s Reply at 10 (internal citations omitted). For the reasons explained below, the Court concludes that the plaintiff has identified sufficient evidence to cast doubt on some of the defendant's proffered reasons.

i. The Plaintiff's Alleged Failure to Communicate with the Defendant During Her "Extended Leave of Absence"

The plaintiff first disputes the defendant's assertion that she "fail[ed] to communicate with Amtrak during her extended leave of absence," Def.'s Mem. at 6, arguing that "she was in constant contact with" her managers and supervisors, Pl.'s Opp'n at 3. Although it is not entirely clear what time period the defendant considers to be the plaintiff's "extended leave of absence," the defendant appears to be referring to the period between April 2011 and February 2012, when the plaintiff attempted to return to work. See Def.'s Reply at 8 (asserting that the plaintiff "did not speak with anyone at Amtrak from April 2011 until January 2012," "except for bumping into [ ] Brewer in a grocery store"); see also id. at 1 (asserting that the plaintiff "did not contact Amtrak for [ten] months about her status"). The evidence before the Court, viewed in the light most favorable to the plaintiff, shows that during this time period, the plaintiff had at least three contacts with Amtrak employees. First, the plaintiff testified that she spoke with McClinton on the phone "sometime before early May 2011," when McClinton called her to "check[ ] to see how [she] was doing" and told her that "she[ ] [would] continue to put [her] on leave without pay." Said Dep. 85:16-20; see also Def.'s Facts ¶ 18 ("[The p]laintiff and [ ] McClinton spoke [ ] at some point in or around April 2011, at which time [ ] McClinton verbally extended [the p]laintiff's leave without a specific return date."). Second, the plaintiff testified that she spoke with Ryan on the phone sometime in May 2011, when he called her regarding a request for information he had received from her deceased husband's life insurance carrier. See id. 57:4-14; 85:10-15; see also Def.'s Facts ¶¶ 28-29 (acknowledging that Ryan "called [the p]laintiff on her phone" when he "received correspondence from [the p]laintiff's husband's insurance carrier," but asserting that the phone call occurred "[i]n [or] about April 2011"). And third, it is undisputed that the plaintiff spoke with Brewer in person at a grocery store in July 2011, when the two women unexpectedly encountered each other there. See Def.'s Facts ¶ 30; see also Pl.'s Opp'n at 18 (describing the encounter with Brewer as "a chance/unscheduled face-to-face meeting"). Although the Court is not convinced that a reasonable jury could find that the plaintiff's chance encounter with Brewer at the grocery store constitutes a "communicat[ion] with Amtrak," Def.'s Mem. at 6, the facts show that her other contacts with McClinton and Ryan occurred when those employees were acting as representatives of Amtrak, see Def.'s Facts ¶ 18 (agreeing that during McClinton's phone call with the plaintiff in or around April 2011, McClinton "verbally extended the plaintiff's leave"); id. ¶ 29 (representing that Ryan's phone call to the plaintiff concerned her husband's life insurance carrier's "request[ ] that Amtrak verify certain information" and "Amtrak's response" to that request (emphases added) ). Therefore, although the plaintiff does not assert that she had any other specific contacts with the defendant's employees during this extended leave of absence period, see Said Dep. 86:4-12 (testifying that after her May 2011 phone call with McClinton, she did not speak with McClinton again until February 2012), a jury could reasonably conclude from these two contacts that the plaintiff did not "fail[ ] to communicate with Amtrak during her extended leave of absence," Def.'s Mem. at 6.

ii. The Plaintiff's Alleged Failure to Advise the Defendant of the Reason She Continued to Be on Leave or Her Expected Return Date

As to the defendant's assertion that the plaintiff "fail[ed] to advise Amtrak of the reason she continued to be on leave," Def.'s Mem. at 6, which appears to refer to "the reason she needed to continue her leave beyond the initial bereavement period," Def.'s Reply at 8, the plaintiff argues that "Amtrak[ ] and its managers ... knew everything about the reason behind [her] absence from work[ ] [and] her ill health, including surrounding circumstances and happenings," Pl.'s Opp'n at 18. As support, she argues that "McClinton, ... Brewer, ... and ... [another employee] signed and put into her personnel file[ ] three [ ] separate Leave of Absence[ ] [ ] form[s] on [her] behalf," and that she discussed her health issues with her supervisors, presumably referring to Brewer and McClinton, who consequently "gave her oral permission over the phone ... to take all the time she needed to get well[ ] before returning to work." Id. at 15; see also, e.g., id. at 20 (asserting that she "informed [ ] McClinton that she had been dropped from her husband's health insurance, and that she ha[d] no money to pay for her doctors' visits or to buy needed medication, and asked [ ] McClinton whether Amtrak would cover her"); Said Dep. 55:4-6 (testifying that "McClinton and [ ] Brewer said [to her] take all the time that [you] need to get well"). The defendant responds that the plaintiff "never provided Amtrak with any doctor's note regarding her condition, nor did she tell anyone at Amtrak about the details of her medical condition," and "[s]he also never notified her [U]nion that she needed an extended medical leave of absence or requested [Family and Medical Leave Act] leave from Amtrak." Def.'s Reply at 18.

Viewing the evidence in the light most favorable to the plaintiff, the Court concludes that the plaintiff has identified evidence creating a genuine factual dispute as to whether she "fail[ed] to advise Amtrak of the reason she continued to be on leave." Def.'s Mem. at 6. First, the defendant admits that during the plaintiff's phone conversation with McClinton "in or around April 2011, ... McClinton verbally extended [the plaintiff's] leave without a specific return date." Def.'s Facts ¶ 18. A reasonable jury could find this fact compelling, given that McClinton presumably would not have extended the plaintiff's leave of absence without a reason provided by the plaintiff. Cf. Aka, 156 F.3d at 1292 ("Events have causes[.]"). Furthermore, the plaintiff testified that during a phone call with McClinton sometime before early May 2011, potentially the same phone call just referenced, the plaintiff "told [McClinton that she] still wasn't doing well" and that her "body was deteriorating," to which McClinton responded that she would "continue to put [the plaintiff] on leave without pay." Said Dep. 85:16-86:3. The plaintiff further testified that when she spoke with Ryan over the phone in early May 2011, "[h]e asked [her] how [she] was doing" and she "told him not that good," to which he responded, "take all the time you need to get well to return to work." Id. 57:10-14. Notably, the defendant does not appear to dispute the occurrence of these communications or their content. See generally Def.'s Mem.; Def.'s Reply. Based on these facts, a reasonable jury could conclude that, contrary to the defendant's position, the plaintiff did not "fail[ ] to advise Amtrak of the reason she continued to be on leave." Def.'s Mem. at 6.

In an apparent attempt to dispute that the plaintiff notified it of the reasons for her continued leave of absence, the defendant argues that "the fact that the CBA governing [the p]laintiff's employment prohibits any leave exceeding [ninety] days without joint agreement between Amtrak and the [U]nion (which indisputably did not occur here) undermines any argument by [the p]laintiff that she had permission for an unlimited leave," Def.'s Reply at 8-9, invoking Rule 22 of the CBA, see also Def.'s Facts ¶ 20 ("McClinton did not have authority to grant a leave of absence of more than [ninety] days." (citing, inter alia, Rule 22); see also Said Dep., Ex. 3 (CBA) at 28-29 ("Except for physical disability ..., leaves of absence in excess of ninety [ ] days in any calendar year shall not be granted unless by agreement between ... [Amtrak] and ... the [Union]."). However, the significance of this argument is unclear to the Court, given that the defendant has not asserted that it terminated the plaintiff because she did not have "permission" to be on leave or, more specifically, because she violated Rule 22 of the CBA. Rather, it has admitted that "in or around April 2011, McClinton verbally extended [the p]laintiff's leave without a specific return date," Def.'s Facts ¶ 18, notwithstanding her alleged lack of authorization. Furthermore, in this litigation, it has explicitly invoked Rule 24, not Rule 22, as the reason for the plaintiff's termination, see Def.'s Mem. at 6 ("[The p]laintiff was terminated pursuant to Rule 24 of the [ ] CBA[.]"), and the Court is unaware of any evidence in the record demonstrating that at any point prior to this litigation, the defendant invoked lack of authorization or violation of Rule 22 as a justification for the plaintiff's termination. Therefore, for these reasons the Court concludes that this argument has no bearing on its summary judgment analysis of whether the plaintiff has identified sufficient evidence to cast doubt on the defendant's proffered reasons for the plaintiff's termination. See Chudson v. Watt, 125 F.Supp.3d 255, 269 (D.D.C. 2015) ("The relevant question [for the Court] is whether the employer's actual reason was legitimate and non[ ]discriminatory-not whether the employer can articulate a 'post-hoc rationale' that would have been legitimate and non[ ]discriminatory." (emphasis added) (quoting Newsom v. Barnhart, 116 F. App'x 429, 434 (4th Cir. 2004) ).

However, the Court cannot conclude that the plaintiff has successfully disputed that she "fail[ed] to advise Amtrak of ... her expected return date.