Al Refat v. Franklin Financial Services Corporation

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

AHSAN AL REFAT, : CIVIL ACTION NO. 1:19-CV-1507

:

Plaintiff : (Judge Conner)

:

v. :

:

FRANKLIN FINANCIAL SERVICES :

CORPORATION d/b/a F&M TRUST, :

:

Defendant :

MEMORANDUM

Plaintiff Ahsan Al Refat (“Refat”) filed this civil rights lawsuit against his

former employer, defendant Franklin Financial Services Corporation d/b/a F&M

Trust (“F&M Trust”). Refat alleges F&M Trust discriminated against him based on

his status as a practicing Muslim and retaliated against him for requesting a

religious accommodation. F&M Trust moves for summary judgment. We will deny

F&M Trust’s motion.

I. Factual Background & Procedural History1

Refat’s employment history with F&M Trust spans only two months, from

February 2017 until April 2017. (See Doc. 21 ¶ 1). F&M Trust hired Refat as an

assistant financial services officer in its Camp Hill Community Office. (See id. ¶¶ 1,

2). Refat’s position was supervisory, and his direct reports included a woman

named Makelle Mummart (also known as Makelle Evans). (See id. ¶ 3). Refat

himself reported to several individuals, including Paulo Oliveira. (See id. ¶ 5).

The parties offer starkly divergent accounts of the events that led to Refat’s

departure from F&M Trust in April 2017. For his part, Refat testified that he is a

practicing Muslim, and that he had at least two, and possibly three, conversations

with F&M Trust leadership about a religious accommodation so that he could

attend Jumu’ah, a Muslim prayer ritual, on Fridays. (See id. ¶¶ 15-16). Refat

believes he spoke with Oliveira to generally inquire about the process of requesting

an accommodation prior to April 11, 2017. (See id. ¶ 18(e)). On or around April 11,

he spoke with Dr. Karen Carmack, F&M Trust’s Chief Human Resources Officer,

on the same topic. (See id. ¶ 18(a)-(h)). He again spoke with Dr. Carmack on or

1 Local Rule 56.1 requires that a motion for summary judgment pursuant to

Federal Rule of Civil Procedure 56 be supported “by a separate, short, and concise

statement of the material facts, in numbered paragraphs, as to which the moving

party contends there is no genuine issue to be tried.” M.D. PA. L.R. 56.1. A party

opposing a motion for summary judgment must file a separate statement of material

facts, responding to the numbered paragraphs set forth in the moving party’s

statement and identifying genuine issues to be tried. Id. Unless otherwise noted,

the factual background herein derives from the parties’ Rule 56.1 statements of

material facts. (See Docs. 21, 25, 26). To the extent the parties’ statements are

undisputed or supported by uncontroverted record evidence, the court cites

directly to the statements of material facts.

around April 17. (See id. ¶ 18(g)). Refat stated Dr. Carmack instructed him to send

her a formal email so she could “look into that.” (See id. ¶¶ 18(b), 18(g), 19-20).

Refat testified that “everything changed” after he asked about the

accommodation. (See Doc. 21-1, Refat Dep. 74:20-75:15). He considered the

conversations with Dr. Carmack discouraging—he “felt like [he] was being ignored”

and believed Dr. Carmack was not “excited to hear about the request.” (See Doc. 21

¶ 21). Refat also indicated he did not consider his request to be odd or unusual; he

has requested religious accommodations for Jumu’ah while employed for five other

companies since 2001, and the request was always granted. (See Refat Dep. 14:21-

22:23).

F&M Trust accepts as true—solely for purposes of its Rule 56 motion—that

Refat requested an accommodation in April 2017. Its management posits that his

termination had nothing to do with any accommodation request; instead, F&M

Trust cites a human resources investigation into a sexual harassment claim against

Refat as the basis for his dismissal. F&M Trust points to an email Mummart sent to

Oliveira and two other F&M Trust employees on the morning of April 17 (the same

day Refat may have reapproached Dr. Carmack about a religious accommodation),

with the subject line “Updates.” (See Doc. 21-9). The email contained Mummart’s

recounting of her then-recent experiences working at F&M Trust. (See id.) The

email also included statements that Mummart was uncomfortable working with

Refat. (See Doc. 21 ¶ 27). Mummart noted Refat “talks about sexual stuff to me

about his wife and parties he goes to.” (See id.; Doc. 21-9). She further noted Refat

informed her that “if his wife stops in, he must ‘behave,’” and that he recounted an

incident where his wife found condoms in his bag. (See Doc. 21 ¶ 27; Doc. 21-9).

According to Mummart’s email, Refat told her “he carries some [condoms] around

‘just in case.’” (See Doc. 21 ¶ 27; Doc. 21-9).

This email was sent to Dr. Carmack, who spoke with Mummart via phone

and asked for additional information about her allegations against Refat. (See Doc.

21 ¶ 28). That afternoon, Mummart sent an email titled “Incidents,” reiterating that

Refat made the remarks described in her first email, as well as several others. (See

id. ¶ 30; Doc. 21-10). She stated Refat “asked me if I believe in hug therapy”

because he “does hugs” rather than shake hands. (See Doc. 21 ¶ 30(e)). She noted

Refat made “comments about customers being hot or not” and told her he would

flirt to get business, if needed. (See id. ¶ 30(c)). At one point, Refat told Mummart

he noticed her name tag, then stated, “thank God you didn’t take that the wrong

way.” (See id. ¶ 30(b)). When Mummart asked what he meant, Refat replied, “that I

was looking at your boobs, which I may or may not have been.” (See id.) Finally,

Mummart stated Refat told her he found her on Google because she modeled for

Harley Davidson, and had learned her previous address and the name of her ex-

husband. (See id. ¶ 30(f)). Mummart claimed Refat instructed her that if a Harley

Davidson event occurred, to “tell him so he can come watch and he said he will not

bring his wife,” and that “if his wife ever comes in he has to behave.” (See id.)

Dr. Carmack, Oliveira, and a third F&M Trust employee then formally

investigated Mummart’s allegations. (See id. ¶ 33). The following day, April 18,

Oliveira and Dr. Carmack interviewed Refat, and Refat denied everything. (See id.

¶¶ 34-35; Doc. 25 ¶¶ 34-35). The parties dispute the material contents of the

interview, including what was said and how long it lasted. (See Refat Dep. 82:22-

99:9; Doc. 21-2, Oliveira Dep. 47:15-51:16; Doc. 21-5, Carmack Dep. 34:18-43:2). Dr.

Carmack remembers the interview as open-ended, detailed, and at least 45 minutes

long, and she recalls that Refat gave shifting, unreliable answers to their questions.

(See Doc. 21 ¶¶ 34, 36; Carmack Dep. 27:12-27:19, 41:25-43:2, 52:17-52:23). According

to Refat, the interview lasted roughly ten minutes and he was instructed to simply

answer “yes or no” to Mummart’s allegations. (See Doc. 25 ¶¶ 34, 36; Refat Dep.

85:3-85:25). In response to a document purporting to contain Dr. Carmack’s notes

of the interview, Refat accused Dr. Carmack of fabricating his interview responses.

(See Refat Dep. at 93:8-94:2, 97:9-97:20, 98:7-98:19, 98:20-99:5).

After speaking with Refat, Mummart, and other employees, Dr. Carmack

considered Mummart credible and Refat not credible, noting that Refat failed to

maintain eye contact and “[h]is story changed,” while Mummart gave “a lot of

detail” and clearly answered follow-up questions. (See Doc. 21 ¶¶ 36-38; Doc. 25 ¶¶

36-38). F&M Trust terminated Refat on the same day as the interview for violating

its nondiscrimination and antiharassment policy. (See Doc. 21 ¶ 41). Refat had

received training on these policies and had also received and signed an employee

handbook describing F&M Trust’s “zero tolerance” policy on harassment. (See id.

¶¶ 7-14). Approximately six months after Refat’s termination, F&M Trust also fired

Mummart for “dishonesty” regarding the details of a family member’s funeral

services. (See id. ¶ 44; Doc. 21-12 at 2).

As highlighted above, the parties have not resolved core factual disputes

surrounding Refat’s employment and termination. Refat considers the entire

investigation and the decision to fire him a manufactured pretext for religious

discrimination and retaliation. (See Doc. 25 ¶ 38). For their part, Dr. Carmack and

Oliveira both flatly deny Refat ever had conversations with either of them about a

religious accommodation request. (See Doc. 21 ¶ 19 n.2). Both assert they did not

know Refat was a practicing Muslim during his employment with F&M Trust. (See

id.) Dr. Carmack testified that “no employee has ever requested a religious

accommodation” during her two decades of employment with the company. (See

Doc. 25 ¶ 50; Carmack Dep. 7:12-7:25, 14:5-15:4). Oliveira stated similarly that he

has not handled a request for religious accommodation since he began working

there in 2016. (See Doc. 25 ¶ 53; Oliveira Dep. 7:13-7:23, 16:7-19:1).

Refat filed a charge with the Pennsylvania Human Relations Commission less

than two weeks after his termination, averring that he had requested time off on

Fridays to “go to mosque to pray” around April 11, and that he had been instructed

to “send Karen an email.” (See Doc. 21-8 at 6). He also cross-filed a complaint with

the Equal Employment Opportunity Commission. (See Doc. 1 ¶ 8). Refat filed the

instant suit in August 2019, alleging religious discrimination and retaliation under

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as well as identical

claims under the Pennsylvania Human Relations Act, (“PHRA”), 43 PA. STAT. AND

CONS. STAT. ANN. § 951 et seq. F&M Trust moves for summary judgment on all of

Refat’s claims. The motion is fully briefed and ripe for disposition.

II. Legal Standard

Through summary adjudication, the court may dispose of those claims that

do not present a “genuine dispute as to any material fact” and for which a jury trial

would be an empty and unnecessary formality. FED. R. CIV. P. 56(a). The burden of

proof tasks the non-moving party to come forth with “affirmative evidence, beyond

the allegations of the pleadings,” in support of its right to relief. Pappas v. City of

Lebanon, 331 F. Supp. 2d 311, 315 (M.D. Pa. 2004); see also Celotex Corp. v. Catrett,

477 U.S. 317, 322-23 (1986). The court is to view the evidence “in the light most

favorable to the non-moving party and draw all reasonable inferences in that party’s

favor.” Thomas v. Cumberland County, 749 F.3d 217, 222 (3d Cir. 2014). This

evidence must be adequate, as a matter of law, to sustain a judgment in favor of the

non-moving party on the claims. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-

57 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-89

(1986). Only if this threshold is met may the cause of action proceed. See Pappas,

331 F. Supp. 2d at 315.

III. Discussion

Refat alleges both discrimination due to his status as a practicing Muslim,

and retaliation in response to his request for a religious accommodation.2 Refat’s

discrimination and retaliation claims are distinct; however, both follow the same

burden-shifting framework, and F&M Trust’s motion rests on Refat’s burden to

prove pretext for each claim.

2 Refat’s complaint does not specify the statutory subsections or theories on

which he bases his cause of action. (See generally Doc. 1). F&M Trust’s motion and

brief assume Refat could be proceeding on a “failure to accommodate” theory. (See

Doc. 22 at 7). Refat’s briefing sheds no light on this issue. (See Doc. 24). However,

Refat does not allege his request for accommodation was ever granted or denied.

(See Doc. 21 ¶ 23). Because “failure to accommodate a religious practice” is part of

a disparate-treatment claim, we do not conduct a separate analysis on this point.

See EEOC v. Abercrombie & Fitch Stores, Inc., 575 U.S. 768, 773 (2015).

A. Religious Discrimination Claims

Title VII makes it unlawful for an employer to “discharge any individual . . .

because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C.

§ 2000e-2(a)(1).3 Religion is defined as “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 or prospective employee’s religious

observance or practice without undue hardship on the conduct of the employer’s

business.” 42 U.S.C. § 2000e(j). The Supreme Court of the United States in 2015

stated that Title VII confers “favored treatment” on religious practices, and “an

employer who acts with the motive of avoiding [a religious] accommodation may

violate Title VII.” See Abercrombie & Fitch Stores, 575 U.S. at 773, 775.

The court analyzes religious discrimination claims under the three-step

burden-shifting framework articulated in McDonnell Douglas Corp. v. Green, 411

U.S. 792, 802-05 (1973). See Abramson v. William Paterson Coll. of N.J., 260 F.3d

265, 281 (3d Cir. 2001). First, a plaintiff must establish a prima facie case of

discrimination by sufficient evidence, direct or circumstantial, that (1) he was a

member of a protected class, (2) he was qualified for the position for which he

applied, (3) he suffered an adverse employment action, and (4) the circumstances of

3 The PHRA similarly makes it unlawful to discharge an individual from

employment “because of the . . . religious creed . . . of any individual.” 43 PA. STAT.

AND CONS. STAT. ANN. § 955(a). Courts review PHRA claims under the same

standards as Title VII claims. See Connelly v. Lane Constr. Corp., 809 F.3d 780, 791

n.8 (3d Cir. 2016) (citing Goosby v. Johnson & Johnson Med., Inc., 228 F.3d 313, 317

n.3 (3d Cir. 2000)).

the adverse employment action give rise to an inference of discrimination.

McDonnell Douglas, 411 U.S. at 802; Abramson, 260 F.3d at 281-82.

Once the plaintiff establishes a prima facie case, the burden shifts to the

defendant to articulate a legitimate, nondiscriminatory reason for its employment

decision. See McDonnell Douglas, 411 U.S. at 802; Abramson, 260 F.3d at 282. The

defendant’s burden at this this stage is “‘relatively light,’” and is a burden of

production only. See Burton v. Teleflex, Inc., 707 F.3d 417, 426 (3d Cir. 2013)

(quoting Tomasso v. Boeing Co., 445 F.3d 702, 706 (3d Cir. 2006)). A plaintiff must

then show that the defendant’s reason for the employment decision was a mere

pretext for discrimination. See McDonnell Douglas, 411 U.S. at 804-05; Fuentes

v. Perskie, 32 F.3d 759, 762 (3d Cir. 1994); Abramson, 260 F.3d at 283. If the plaintiff

is able to demonstrate pretext, the factfinder may infer discrimination from its

“rejection of the employer’s proffered reason,” and no additional evidence is

required. See Burton, 707 F.3d at 427 (citing Fuentes, 32 F.3d at 764; Fasold

v. Justice, 409 F.3d 178, 185 (3d Cir. 2005)). Evidence can “serve both to establish a

prima facie case and discredit a defendant’s explanation.” See Dillon v. Coles, 746

F.2d 998, 1003 (3d Cir. 1984); see also Tex. Dep’t of Cmty. Affs. v. Burdine, 450 U.S.

248, 256 n.10 (1981).

To demonstrate pretext and defeat summary judgment, a plaintiff must

identify evidence that would allow the factfinder to “(1) disbelieve the employer’s

articulated legitimate reasons; or (2) believe that an invidious discriminatory reason

was more likely than not a motivating or determinative cause of the employer’s

action.” Shaner v. Synthes, 204 F.3d 494, 501 (3d Cir. 2000) (quoting Fuentes, 32

F.3d at 764). The plaintiff may point out “weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions in the employer’s proffered

legitimate reasons.” See Willis v. UPMC Children’s Hosp. of Pittsburgh, 808 F.3d

638, 644 (3d Cir. 2015) (quoting Fuentes, 32 F.3d at 764). The plaintiff can also point

to evidence that the employer previously discriminated against him; discriminated

against others in the plaintiff’s protected class; or treated others who were similarly

situated, but not in plaintiff’s protected class, more favorably than it treated the

plaintiff. Id. at 645 (citing Simpson v. Kay Jewelers, Div. of Sterling, Inc., 142 F.3d

639, 645 (3d Cir. 1998)). However, a plaintiff endeavoring to demonstrate pretext

cannot “simply show that the employer’s decision was wrong or mistaken.” See

Kautz v. Met-Pro Corp., 412 F.3d 463, 467 (3d Cir. 2005) (quoting Fuentes, 32 F.3d at

765). The plaintiff must offer “evidence contradicting the core facts put forward by

the employer as the legitimate reason for its decision.” Tomasso, 445 F.3d at 706

(quoting Kautz, 412 F.3d at 467).

F&M Trust does not dispute Refat’s prima facie case for purposes of its

motion, and it has proffered a legitimate nondiscriminatory reason for its decision

to terminate Refat’s employment—namely, that he engaged in sexual harassment.

(See Doc. 22 at 4-12; Doc. 27 at 2-10). Thus, the only dispute is pretext. We note at

the outset that Refat does not rely on extrinsic evidence of discriminatory bias on

the part of F&M Trust to establish pretext; he neither claims nor substantiates, for

example, that F&M Trust previously discriminated against him or other religious

employees, or treated similarly situated, nonreligious employees more favorably.

Cf. Willis, 808 F.3d at 645. Thus, to demonstrate pretext, Refat must point to

“weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions” in

F&M Trust’s proffered reason for firing him. Cf. Fuentes, 32 F.3d at 764.

The pretext inquiry sub judice presents a close case that turns almost entirely

on credibility disputes. We are presently confronted with two parallel and

diametrically opposed sets of “core facts.” Cf Tomasso, 445 F.3d at 706. Refat’s

position is not new; he filed a charge in May 2017 with the Pennsylvania Human

Relations Commission in which he averred that he requested time off on Fridays to

“go to mosque to pray.” (See Doc. 21-8 at 6). A factfinder who credits Refat’s

testimony about his multiple requests for accommodation would likely discredit as

“implausible” the assertions by Carmack and Oliveira that Refat never mentioned

his Islamic faith, Jumu’ah, or the need for an accommodation. Cf. Willis, 808 F.3d at

644. If Refat’s version of events is credible, the factfinder could reasonably

“disbelieve the employer’s articulated legitimate reasons” for firing him just a single

day after he renewed his request for a religious accommodation. Cf. Shaner, 204

F.3d at 501.

On the other hand, F&M Trust argues that Refat’s faith never entered the

picture; he was summarily fired after Mummart made serious, detailed, and

credible allegations of sexual harassment against him. (See Doc. 21 ¶¶ 36-41; Doc.

21-11 at 2). A factfinder who credits F&M Trust would likely consider Refat the

fabricator. Under this view, Refat sued in response to an investigation that he

considered unfair, conveniently aligning his purported accommodation requests

with the harassment allegations for which he was terminated.4 At the summary

judgment stage, we make no credibility determinations, and draw all reasonable

inferences in favor of Refat as the nonmovant. See Thomas, 749 F.3d at 222.

At this juncture, summary judgment is inappropriate on Refat’s religious

discrimination claims due to the genuine, threshold disputes of material fact

surrounding his employment with F&M Trust. We will deny F&M Trust’s motion

on these claims.

B. Retaliation Claims

Title VII also prohibits an employer from retaliating against an employee

“because he has opposed any practice made an unlawful employment practice by

this subchapter, or because he has made a charge, testified, assisted, or participated

in any manner in an investigation, proceeding, or hearing under this subchapter.”

42 U.S.C. § 2000e-3(a).5 To establish a prima facie case of retaliation under Title VII,

a plaintiff must present evidence that (1) he engaged in a protected activity, (2) he

4 We reiterate here that the ultimate truth or falsity of Mummart’s allegations

is not relevant to our resolution of this case, only whether F&M Trust relied on

them to terminate Refat. After F&M Trust produced a legitimate,

nondiscriminatory or nonretaliatory reason for termination, the “sole remaining

issue is discrimination vel non.” See Vernon v. A & L Motors, 381 F. App’x 164, 168

(3d Cir. 2010) (nonprecedential) (quoting Reeves v. Sanderson Plumbing Prods.,

Inc., 530 U.S. 133, 143 (2000)). The jury must only decide whether discrimination

was the “real reason” for Refat’s termination. See Fuentes, 32 F.3d at 763 (quoting

St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993)).

5 The PHRA similarly forbids discrimination “against any individual because

such individual has opposed any practice forbidden by this act, or because such

individual has made a charge, testified or assisted, in any manner, in any

investigation, proceeding or hearing under this act.” 43 PA. STAT. AND CONS. STAT.

ANN. § 955(d). Our court of appeals applies the same analytical framework to PHRA

retaliation claims as to Title VII retaliation claims. Connelly, 809 F.3d at 791 n.9.

suffered an adverse employment action, and (3) there was a causal connection

between the protected activity and the adverse employment action. See Carvalho-

Grevious v. Del. State Univ., 851 F.3d 249, 257 (3d Cir. 2017) (citing Moore v. City of

Philadelphia, 461 F.3d 331, 340-41 (3d Cir. 2006)). Due to the causal connection

requirement, retaliation claims often focus on the timing between an employee’s

activity and the adverse employment action, and timing may be indicative of

causation if it is “unusually suggestive of retaliatory motive.” See Shaner, 204 F.3d

at 505 (citing Krouse v. Am. Sterilizer, 126 F.3d 494, 503 (3d Cir. 1997)). In rare

cases, “temporal proximity between the protected activity and the termination is

sufficient to establish a causal link.” See Woodson v. Scott Paper Co., 109 F.3d 913,

920 (3d Cir. 1997) (citing Jalil v. Avdel Corp., 873 F.2d 701, 708 (3d Cir. 1989) (two-

day lapse between protected activity and termination sufficient to infer causation)).

Title VII retaliation claims also follow the McDonnell Douglas burden-

shifting framework. Carvalho-Grevious, 851 F.3d at 257 (citing Daniels v. Sch. Dist.

of Phila., 776 F.3d 181, 198 (3d Cir. 2015)). If the employee succeeds in making his

prima facie case, the burden shifts to the employer to produce a legitimate,

nonretaliatory reason. Shellenberger v. Summit Bancorp, Inc., 318 F.3d 183, 189

(3d Cir. 2003). After the employer articulates such a reason, the plaintiff bears the

burden of demonstrating that the given explanation is mere pretext and “unworthy

of credence.” Carvalho-Grevious, 851 F.3d at 262 (quoting Daniels, 776 F.3d at 199).

As with the discrimination claims, F&M Trust concedes only for the purpose

of summary judgment that Refat has stated a prima facie case of retaliation,6 and

focuses on pretext. For the reasons outlined supra in Section II(A), summary

judgment at this juncture is improper: if a factfinder credits Refat’s assertion, it

becomes plausible that F&M Trust’s basis for terminating him was pretextual and

that, based on temporal proximity, his termination was causally connected to his

renewed request for an accommodation. See, e.g., Jalil, 873 F.2d at 709 (noting

timing of plaintiff’s firing “could suggest the very real possibility that [the employer]

6 Neither party discusses whether Refat’s purported request for a religious

accommodation constitutes protected activity under the statute. See 42 U.S.C.

§ 2000e-3(a). At a glance, Refat’s Jumu’ah requests do not appear to oppose any

action made unlawful under Title VII, nor does he allege pretermination

participation in any proceeding pursuant to a Title VII complaint. See EEOC v. N.

Mem’l Health Care, 908 F.3d 1098, 1102 (8th Cir. 2018) (applicant whose job offer

was rescinded after she requested religious accommodation failed to state a claim

for Title VII retaliation because “merely requesting a religious accommodation is

not the same as opposing the allegedly unlawful denial of a religious

accommodation”). We are cognizant of the Supreme Court’s broad construction of

“protected activity” under Title VII’s antiretaliation provision. See, e.g. Thompson

v. N. Amer. Stainless, LP, 562 U.S. 170, 173-74 (2011) (citing Burlington N. & Santa

Fe Ry. Co. v. White, 548 U.S. 53, 62-63 (2006)). We further note that our court of

appeals construes the Americans with Disabilities Act (“ADA”) to prohibit

“retaliation against an employee for requesting an accommodation.” See Sulima

v. Tobyhanna Army Depot, 602 F.3d 177, 188 (3d Cir. 2010) (citing Shellenberger,

318 F.3d at 191); see also Ruggiero v. Mount Nittany Med. Ctr., 736 F. App’x 35, 41

(3d Cir. 2018) (nonprecedential) (noting “good faith request for an accommodation .

. . was protected activity under the ADA sufficient to support a retaliation claim”).

Yet Title VII and the ADA are distinct statutes, and the Supreme Court has rejected

the contention that Title VII includes a freestanding failure-to-accommodate claim,

in direct contrast with the ADA. Compare Abercrombie & Fitch Stores, 575 U.S. at

771 (providing “the rule for disparate-treatment claims based on a failure to

accommodate a religious practice”) (emphasis added), with Capps v. Mondelez

Glob., LLC, 847 F.3d 144, 157 (3d Cir. 2017) (listing elements of ADA failure-to-

accommodate claim). Absent briefing on this issue, we assume without deciding for

the purposes of summary judgment that Refat’s request constitutes protected

activity under Title VII.

seized upon this instance of insubordination to fire” him (internal citation and

quotation marks omitted)). We are again mindful that “[c]redibility determinations

are for the factfinder and are inappropriate at the summary judgment stage.” See

Carvalho-Grevious, 851 F.3d at 262 (citing Anderson, 477 U.S. at 255). Accordingly,

these claims too must be decided by the jury.

IV. Conclusion

We will deny F&M Trust’s motion (Doc. 20) for summary judgment. An

appropriate order shall issue.

/S/ CHRISTOPHER C. CONNER

Christopher C. Conner

United States District Judge

Middle District of Pennsylvania

Dated: June 24, 2021