Petition for Writ of Certiorari — Tami M. Dixon, Petitioner v. Scott Bessent, Secretary of the Treasury, et al.
Supreme Court briefOct 14, 2025
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No. 25In the
Supreme Court of the United States
TAMI M. DIXON,
Petitioner,
v.
SCOTT BESSENT, UNITED STATES SECRETARY OF
THE TREASURY, IN HIS OFFICIAL CAPACITY, et al.,
Respondents.
On Petition for a Writ of Certiorari to the
United States Court of A ppeals for the
District of Columbia Circuit
PETITION FOR A WRIT OF CERTIORARI
Theresa Kraft
Counsel of Record
Wilt Toikka Kraft, LLP
1629 K Street NW,
Suite 300
Washington, DC 20006
(202) 508-3647
tkraft@wtk-law.com
Counsel for Petitioner
120695
A
(800) 274-3321 • (800) 359-6859
i
QUESTIONS PRESENTED
1. Whether an employer’s requirement that an
employee undergo COVID-19 testing, based solely on the
employee’s unvaccinated status, constitutes regarding the
employee as having a disability under the Americans with
Disabilities Act or the Rehabilitation Act.
2. Whether an unvaccinated federal employee must
be perceived to have a specific disability to be “regarded
as” having a disability under the Americans with
Disabilities Act and the Rehabilitation Act.
3. Whether, to state a viable claim of religious
discrimination under Title VII, a plaintiff must plead
specific details related to comparator employees at the
pleading stage.
ii
PARTIES TO THE PROCEEDING
All parties to the proceeding are listed in the caption.
The petitioner is Tami M. Dixon, an individual with
sincerely held religious beliefs. The respondent is the
Scott Bessent, United States Secretary of the Treasury,
in his official capacity.
iii
RELATED PROCEEDINGS
Dixon v. Yellen, No. 22-cv-3496 (AMP), 2024 U.S.
Dist. LEXIS 77051 (D.D.C. Mar 21, 2024).
Dixon v. Bessent, No. 24-5110, 2025 U.S. App. LEXIS
15296 (D.C. Cir. Jun 20, 2025) reh’g denied Jul 16, 2025,
sub nom. Dixon v. Yellen, No. 22-cv-3496 (AMP), 2024
U.S. Dist. LEXIS 77051 (D.D.C. Mar 21, 2024).
iv
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . i
PARTIES TO THE PROCEEDING . . . . . . . . . . . . . . . . ii
RELATED PROCEEDINGS . . . . . . . . . . . . . . . . . . . . iii
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . iv
TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . . . vi
TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . vii
OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATUTORY PROVISIONS INVOLVED . . . . . . . . . . 1
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . 3
A. Petitioner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
B. District Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
C. D.C. Circuit Decision . . . . . . . . . . . . . . . . . . . . . . . 6
REASONS FOR GRANTING THE PETITION . . . . . 6
v
Table of Contents
Page
I.
Need for Court Clarification of “Regarded
A s” Disabi l ity under the A DA a nd
Rehabilitation Act . . . . . . . . . . . . . . . . . . . . . . . . . 6
II. Title VII Pleading Standards Require No
Detailed Comparator Allegations . . . . . . . . . . . 10
III. Failure to Accommodate Religion States
a Plausible Title VII Claim Absent Specific
Comparator Evidence . . . . . . . . . . . . . . . . . . . . . 12
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
vi
TABLE OF APPENDICES
Page
APPENDIX A — JUDGMENT OF THE UNITED
STATES COURT OF APPEALS FOR THE
DISTRICT OF COLU M BI A CIRCUIT,
FILED JUNE 20, 2025 . . . . . . . . . . . . . . . . . . . . . . . 1a
APPENDIX B — MEMORANDUM OPINION OF
THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBI A ,
FILED MARCH 21, 2024 . . . . . . . . . . . . . . . . . . . . . .9a
APPENDIX C — ORDER OF THE UNITED
S TAT E S DI S T R IC T C OU RT FOR
T H E DI S T R IC T OF C OLU M BI A ,
FILED MARCH 21, 2024 . . . . . . . . . . . . . . . . . . . . .25a
APPENDIX D — ORDER OF THE UNITED
STATES COURT OF APPEALS FOR THE
DISTRICT OF COLU M BI A CIRCUIT,
FILED JULY 16, 2025 . . . . . . . . . . . . . . . . . . . . . . . 26a
APPENDIX E — ORDER OF THE UNITED
STATES COURT OF APPEALS FOR THE
DISTRICT OF COLU M BI A CIRCUIT,
FILED JULY 16, 2025 . . . . . . . . . . . . . . . . . . . . . . . 28a
vii
TABLE OF CITED AUTHORITIES
Page
Cases
Ansonia Bd. of Educ. v. Philbrook,
479 U.S. 60 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Chalmers v. Tulon Co.,
101 F.3d 1012 (4th Cir. 1996) . . . . . . . . . . . . . . . . . . . 13
Conley v. Gibson,
355 U.S. 41 (1957) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
EEOC v. Abercrombie & Fitch Stores, Inc.,
575 U.S. 768 (2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Holbrook v. Reno,
196 F.3d 255 (D.C. Cir. 1999) . . . . . . . . . . . . . . . . . . . 10
Lemmons v. Georgetown Univ. Hosp.,
431 F. Supp. 2d 76 (D.D.C. 2006) . . . . . . . . . . . . . . . . . 3
Littlejohn v. City of New York,
795 F.3d 297 (2d Cir. 2015) . . . . . . . . . . . . . . . . . . 11, 12
Richardson v. Chi. Transit Auth.,
926 F.3d 881 (7th Cir. 2019) . . . . . . . . . . . . . . . . . . . . . 7
School Bd. of Nassau County v. Arline,
480 U.S. 273 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Smith v. Lockheed-Martin Corp.,
644 F.3d 1321 (11th Cir. 2011) . . . . . . . . . . . . . . . . . . 11
viii
Cited Authorities
Page
Smith v. Nev. Dep’t of Motor Vehicle Off.,
2025 U.S. App. LEXIS 12911 (May 28, 2025) . . . . 10-12
Southerland v. Peterson’s Oil Serv.,
126 F.4th 728 (1st Cir. 2025) . . . . . . . . . . . . . . . . . . . . 9
Sutton v. United Air Lines, Inc.,
527 U.S. 471 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 9
Swierkiewicz v. Sorema N.A.,
534 U.S. 506 (2002) . . . . . . . . . . . . . . . . . . . . . . . . 10, 12
Toyota Motor Mfg., Kentucky, Inc. v. Williams,
534 U.S. 184 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Trans World Airlines, Inc. v. Hardison,
432 U.S. 63 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Wilson v. B/E Aerospace, Inc.,
376 F.3d 1079 (11th Cir. 2004) . . . . . . . . . . . . . . . . . . 11
Statutes
29 U.S.C. § 701 et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
29 U.S.C. § 791 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2
42 U.S.C. § 12101 et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . 1
42 U.S.C. § 12102(1)-(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ix
Cited Authorities
Page
42 U.S.C. § 12102(3)A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
42 U.S.C. § 2000e et seq. . . . . . . . . . . . . . . . . . . . . . . . . . . 1
42 U.S.C. § 2000e(j) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
42 U.S.C. § 2000e-16(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Pub. L. No. 110-325, § 2, 122 Stat. 3553 . . . . . . . . . . . . . 7
Pub. L. No. 110-325, § 2(b)(3) . . . . . . . . . . . . . . . . . . . . . 7
Pub. L. No. 110-325, § 2(b)(5) . . . . . . . . . . . . . . . . . . . . . 7
1
OPINIONS BELOW
The court of appeal’s decision is unpublished but
is available at 2025 U.S. App. LEXIS 15296 and App.
1a. The district court’s opinion and order granting
respondent’s motion to dismiss is not recorded in the
Federal Supplement but is available at 2024 U.S. Dist.
LEXIS 77051 and App. 9a.
JURISDICTION
The judgment of the court of appeals was entered
on June 20, 2025. A timely petition for rehearing and
rehearing en banc was denied on July 16, 2025 (App.
infra, 26a and 28a). The ruling has not been published in
the Federal Supplement but is available at App. 1a. This
Court has Jurisdiction under 28 U.S.C. 1254(1).
STATUTORY PROVISIONS INVOLVED
This case arises under the Rehabilitation Act of 1973,
29 U.S.C. § 701 et seq., which prohibits discrimination on
the basis of disability in federal employment, including
discrimination against employees “regarded as having” a
disability, 29 U.S.C. § 791. The Act incorporates standards
developed under the Americans with Disabilities Act, 42
U.S.C. § 12101 et seq., and defines “disability” to include
a physical or mental impairment that substantially limits
a major life activity, a record of such an impairment,
or being regarded as having such an impairment, 42
U.S.C. § 12102(1)-(3). This case also arises under Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e
et seq., which prohibits employers from discriminating
against employees on the basis of religion and requires
2
reasonable accommodation of employees’ sincerely held
religious beliefs, 42 U.S.C. § 2000e(j). These provisions
are directly implicated by the petitioner’s claims that
her former employer, the Department of the Treasury,
failed to accommodate her sincerely held religious beliefs
regarding COVID-19 vaccination and remote work, and
that she was regarded as disabled due to her unvaccinated
status.
INTRODUCTION
This case presents the Court with an opportunity to
clarify important questions at the intersection of federalsector employment law, public health policy, and statutory
protections under the Americans with Disabilities Act
(ADA), the Rehabilitation Act of 1973, and Title VII of
the Civil Rights Act of 1964.
The case arises in the unique context of the COVID-19
pandemic, but its implications extend well beyond
that emergency. It calls on the Court to determine
whether federal agencies may impose blanket workplace
mandates—such as mandatory COVID-19 testing
and return-to-office requirements—on unvaccinated
employees without violating federal anti-discrimination
laws, particularly when requests for religious and medical
accommodations are pending.
Federal employees are guaranteed the right to
work “free from any discrimination” based on religion
or disability. See 42 U.S.C. § 2000e-16(a); 29 U.S.C.
§ 791. In this case, Petitioner—a federal employee—was
required to return to in-person work and undergo regular
COVID-19 testing solely because of her unvaccinated
3
status, even though she had submitted a religious
exemption request that had not yet been adjudicated.
Vaccinated employees were permitted to work remotely
without similar intrusion. This policy resulted in tangible
adverse treatment based on both her sincerely held
religious beliefs and her perceived health status.
The courts below dismissed her claims at the pleading
stage, holding that she failed to allege sufficient facts to
support claims under the ADA, the Rehabilitation Act, or
Title VII. In doing so, the lower courts adopted unduly
restrictive interpretations of these statutes and imposed
heightened pleading standards that have no basis in the
text of the laws or in this Court’s precedent. Furthermore,
neither the Supreme Court nor the D.C. Circuit has
articulated a clear legal framework for evaluating Title
VII claims based on the failure to accommodate religious
beliefs. See Ansonia Bd. of Educ. v. Philbrook, 479 U.S.
60, 67 (1986); Lemmons v. Georgetown Univ. Hosp., 431
F. Supp. 2d 76, 95 n.22 (D.D.C. 2006).
Without clarification, federal employees will continue
to face uncertainty and disparate outcomes depending
on the jurisdiction in which they file suit. This case thus
raises questions of exceptional importance that merit this
Court’s review.
STATEMENT OF THE CASE
A. Petitioner
Between October 2015 and July 2022, Petitioner, Tami
M. Dixon worked for the Department of the Treasury,
initially as a contractor and later as an employee under
4
Schedule A hiring authority, making the agency aware
of her disability from the start. Ms. Dixon is a woman of
faith whose religious beliefs are grounded in the Christian
doctrine of Imago Dei, the belief that humans are created
in God’s image. Her faith includes the principle that each
person has a God-given right to bodily integrity and to
informed consent regarding any medical intervention.
In response to COVID-19, Executive Order 14043
mandated vaccination for federal employees by November
22, 2021. Ms. Dixon submitted a religious exemption
request and requested continued remote work as an
accommodation to accommodate both her medical
conditions and religious beliefs. Her religious exemption
request explained that vaccination and mandatory testing
conflicted with her sincerely held religious beliefs and
that compliance would violate her conscience and faith.
While her exemption was pending, the agency-imposed
COVID-19 mandatory testing, mask protocols, and
return-to-office requirements for unvaccinated employees,
while vaccinated employees and certain unvaccinated
employees seeking non-religious accommodations were
exempt.
Ms. Dixon repeatedly communicated her concerns to
supervisors and the EEO office, explaining that she felt
stigmatized and treated as diseased solely because of her
unvaccinated status and sincerely held religious beliefs.
She faced multiple communications warning of disciplinary
action, peer pressure, and hostility from supervisors.
Despite her religious exemption still being pending, her
previously approved remote work arrangements were
rescinded.
5
On August 10, 2022, Ms. Dixon filed a formal
EEO complaint detailing the denial of her religious
accommodation and the disparate treatment she endured.
She explained that her religion, morality, and oath of office
were questioned and disregarded and that she was treated
as if her objection were merely a personal preference to
avoid returning to the office rather than sincerely held
religious beliefs.
B. District Court
After exhausting her administrative remedies, Ms.
Dixon filed suit in the D.C. District Court, alleging that
the Department of the Treasury violated her right to
freely exercise her religion under the Religious Freedom
Restoration Act (RFRA); violated the Americans with
Disabilities Act and Rehabilitation Act by subjecting
her to discrimination because officials regarded her as
disabled; and subjected her to discrimination in violation
of Title VII of the Civil Rights Act.
The District Court dismissed Ms. Dixon’s claims
under the Rehabilitation Act and Title VII. As for the
Rehabilitation Act claim, the court held that COVID-19
was not a disability as a matter of law and that petitioner
failed to allege she was “regarded as” disabled due
to her unvaccinated status. The court also imposed a
heightened pleading requirement for her Title VII claim,
requiring her to identify comparators who were “nearly
identical” in all relevant respects. Specifically, the district
court determined that the military spouses Dixon cited
as receiving more favorable treatment with respect
to remote-work accommodations did not satisfy this
standard and could not support an inference of religious
discrimination.
6
C. D.C. Circuit Decision
The D.C. Circuit affirmed the district court’s
dismissal in an unpublished opinion, available at 2025
U.S. App. LEXIS 15296 (Jun. 20, 2025). The Circuit
held that petitioner had not plausibly alleged that her
employer perceived her as having a disability under
the Rehabilitation Act, emphasizing that COVID-19
infection, absent allegations of long-term or severe effects,
is generally considered too “transitory and minor” to
constitute a disability. The Court also held that Dixon
“abandoned” her RFRA and hostile work environment
claims by not raising them in her opening brief. With
respect to the Title VII claim, the Circuit concluded that
Dixon had not plausibly alleged an inference of religious
discrimination because she did not identify similarly
situated employees outside her protected class who were
treated more favorably. The Court noted that the only
employees granted remote-work accommodations were
military spouses, a criterion that petitioner did not meet,
undercutting any inference of discriminatory intent.
REASONS FOR GRANTING THE PETITION
I.
Need for Court Clarification of “Regarded As”
Disability under the ADA and Rehabilitation Act
Ms. Dixon’s case raises a critical question about when
federal employees are “regarded as” disabled under
the ADA and the Rehabilitation Act. Under 42 U.S.C.
§ 12102(3)(A), an individual is regarded as disabled if
subjected to adverse action due to an actual or perceived
impairment, even if the impairment does not limit a major
life activity. The lower courts’ focus on whether COVID-19
7
constituted an actual disability overlooked the central
purpose of the “regarded as” framework, which protects
employees subjected to adverse treatment based on a
perceived impairment. In Sutton v. United Air Lines,
Inc., 527 U.S. 471 (1999), this Court held that a “regarded
as” claim arises when an employer treats an employee as
having a disability, regardless of whether the employee
is actually impaired. Similarly, in Toyota Motor Mfg.,
Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), the Court
emphasized that the perceived impact of an impairment
on work-related abilities may itself constitute a disability
under federal law.
Congress expressly responded to the narrowing effect
of Sutton and Toyota by enacting the ADA Amendments
Act of 2008 (“ADAAA”). Pub. L. No. 110-325, § 2, 122 Stat.
3553, 3553–54. In its “Findings and Purposes” section of
the Amendments, Congress observed that “the holdings of
the Supreme Court in Sutton and its companion cases have
narrowed the broad scope of protection intended to be
afforded by the ADA,” and that the Court’s interpretation
in Toyota had “created an inappropriately high level of
limitation necessary to obtain coverage under the ADA.”
Id. To correct this trend, Congress declared its purpose
was to “convey that the question of whether an individual’s
impairment is a disability under the ADA should not
demand extensive analysis,” and to “reinstat[e] a broad
scope of protection under the ADA.” Id. § 2(b)(5); see also
Richardson v. Chi. Transit Auth., 926 F.3d 881 (7th Cir.
2019) (confirming that, in passing the ADAAA, Congress
intended to expand the Act to cover conditions that did
not significantly or severely restrict major life activities).
Congress also made clear that the “regarded as” prong
was intended to extend protection to individuals subjected
8
to discrimination “whether or not the impairment limits
or is perceived to limit a major life activity.” Id. § 2(b)(3).
Far from imposing a heightened pleading standard,
Congress intended the “regarded as” framework to
provide robust protection against discrimination rooted
in stereotypes, assumptions, and fears about perceived
health conditions. The lower courts’ dismissal of Ms.
Dixon’s claim—based solely on whether COVID-19
constituted an actual disability—contradicts this express
legislative mandate and underscores the need for this
Court’s review.
Federal courts have repeatedly recognized that
employees can be regarded as disabled when employers
act out of fear that they may spread a communicable
disease. In School Bd. of Nassau County v. Arline, 480
U.S. 273 (1987), this Court held that an employee with
a communicable disease could not be discharged based
on the contagious nature of her disease alone. In this
decision, the Court explained that Congress expanded the
protections of the Rehabilitation Act in order to prevent
such discrimination and explained that the Act applies
even where the employee is regarded as being contagious.
While patients diagnosed with communicable diseases are
disabled under the Rehabilitation Act, the central focus
of these cases is that they were treated disparately out of
fear regarding their conditions rather than any impact on
their work. This correlates to how Ms. Dixon and others
are treated based on their unvaccinated status. Similar
to those with communicable diseases, Ms. Dixon was
subjected to discriminatory treatment based on a fear
that she may spread illness due to her vaccination status.
These cases demonstrate that disparate treatment based
9
on perceived risk of contagion is actionable under federal
disability law under the “regarded as” framework. See
also, Southerland v. Peterson’s Oil Serv., 126 F.4th 728 (1st
Cir. 2025) (holding that under the ADA, a plaintiff need
not prove that their impairment limits or is perceived to
limit a major life activity to proceed on a “regarded as”
disability claim).
In Dixon’s case, the Department of the Treasury
imposed mandatory COV ID-19 testing, masking,
and threatened disciplinary action solely because she
remained unvaccinated, effectively treating her as a health
threat. The lower courts dismissed her claim as a matter
of law, concluding COVID-19 was “transitory and minor”
without a developed factual record and while disregarding
comments that demonstrated animus. This conflicts with
the holdings in Sutton and Southerland, which underscore
that perceived impairments must be assessed in context
and with the facts of a case. Resolution by this Court would
provide federal employees clarity on whether perceived
vulnerability to infectious disease qualifies as a “regarded
as” disability, and whether adverse employment actions
premised on such perceptions violate the Rehabilitation
Act.
Furthermore, the lower courts’ approach—linking
a “regarded as” claim to an actual disability rather
than focusing on the employer’s perception—effectively
imposes a heightened pleading burden that conflicts with
the statutory purpose of the “regarded as” standard under
the ADA and Rehabilitation Act.
10
II. Title VII Pleading Standards Require No Detailed
Comparator Allegations
The Supreme Court has long held that Title VII
plaintiffs are not required to plead detailed evidence at
the motion-to-dismiss stage. In Swierkiewicz v. Sorema
N.A., 534 U.S. 506 (2002), the Court clarified that a short
and plain statement suffices to give defendants notice of
the claim, relying on liberal discovery procedures to define
disputed facts. Likewise, in Conley v. Gibson, 355 U.S.
41 (1957), the Court emphasized that complaints should
not be dismissed for lack of detailed factual allegations
unless it appears “beyond doubt” that they cannot prove
any set of facts showing entitlement to relief.
While comparator evidence can establish an inference
of discrimination, it is not the only method for doing so.
Additionally, Circuit courts differ on the extent to which
comparator specificity is required at the pleading stage.
As noted by the district court in this case, the D.C. Circuit
has required plaintiffs to establish comparators are nearly
identical at the pleading stage. For example, in Holbrook
v. Reno, 196 F.3d 255, 261 (D.C. Cir. 1999), clarified that
while plaintiffs are not required to have access to full
comparator information prior to discovery, they must show
comparators are “nearly identical in all relevant respects.”
By contrast, in Smith v. Nev. Dep’t of Motor Vehicle
Off., 2025 U.S. App. LEXIS 12911 (May 28, 2025), the
Ninth Circuit found the district court erred by dismissing
the plaintiff’s Title VII claim on the ground that he did
not allege his named comparator was similarly situated.
The court noted that the fact that the two individuals were
different in one aspect, “does not conclusively establish”
11
that they are not comparators. Id. The court further noted
that while the plaintiff may have to establish he is similarly
situated at the summary judgment stage, he does not at
the pleading stage. Id.
The Second and Eleventh Circuits have emphasized
that plaintiffs need not identify detailed comparator
information at the motion-to-dismiss stage. Instead, these
courts hold that reasonable inferences of discrimination
may be drawn from allegations of differential treatment.
For example, in Smith v. Lockheed-Martin Corp., 644 F.3d
1321 (11th Cir. 2011), the Eleventh Circuit explained that
comparators need not always be nearly identical in all
aspects of employment. The court explained that a failure
to produce a viable comparator “does not necessarily doom
the plaintiff’s case.” Id. The court noted that it is possible
for a jury to infer discrimination based on circumstantial
evidence, even where comparator evidence is lacking. Id.
In Wilson v. B/E Aerospace, Inc., 376 F.3d 1079 (11th
Cir. 2004), the Eleventh Circuit noted that even after
discovery, cases cannot be disposed based only on the
lack of comparator evidence. The court noted that where
other evidence of discriminatory animus exists, summary
disposition of a case is inappropriate, even where there is
no comparator evidence. Id.
In Littlejohn v. City of New York, 795 F.3d 297 (2d
Cir. 2015), the Second Circuit held that a plaintiff could
plausibly allege disparate treatment based on membership
in a protected class without naming specific comparators.
The court also held that while a Title VII plaintiff will
ultimately need evidence to prove discrimination, at
the pleading stage, they benefit from the temporary
12
presumption of discriminatory intent and have a minimal
burden. Id. (citing Swierkiewicz).
Taken together, these decisions establish that
allegations showing differential treatment between the
plaintiff and employees outside the protected class, even
without exhaustive comparator details, are sufficient to
survive a motion to dismiss. Applied here, Ms. Dixon
like many plaintiffs, had limited comparator information
at the pleading stage. What she did know is that other
groups—such as military spouses—received remote work
accommodations. As in Smith, the fact that the comparator
group were military spouses does not conclusively
determine that they did not submit religious exemption
requests. 2025 U.S. App. LEXIS 12911, (May 28, 2025).
That a secular group received the accommodations while
religious requests were disregarded, should be sufficient
under this Court’s precedent to survive a motion to
dismiss.
Requiring more specificity at the pleading stage—
as the lower courts did—conflicts with Swierkiewicz
and undermines the practical operation of Title VII
protections for federal employees.
III. Failure to Accommodate Religion States a Plausible
Title VII Claim Absent Specific Comparator
Evidence
Under Title VII, religion encompasses all aspects
of religious obser vance and practice, and failure
to accommodate a sincerely held belief constitutes
discrimination. In EEOC v. Abercrombie & Fitch Stores,
Inc., 575 U.S. 768 (2015), the Court held that an employer
13
may be liable if the need for accommodation is a motivating
factor in an employment decision, even when the employer
does not have actual knowledge of the belief. This principle
affirms that religious discrimination claims need not await
full discovery of internal deliberations.
In Trans World Airlines, Inc. v. Hardison, 432
U.S. 63 (1977), the Court recognized that reasonable
accommodations must be provided unless they impose
undue hardship, establishing the framework for evaluating
denial of religious exemptions. Similarly, Chalmers
v. Tulon Co., 101 F.3d 1012 (4th Cir. 1996), held that
allegations of informing the employer and suffering
adverse action are sufficient to state a claim at the
pleading stage.
Ms. Dixon alleged that her religious exemption and
remote work requests were denied while comparable nonreligious requests were granted, and that agency officials
acted with animus toward unvaccinated employees. These
allegations, accepted as true, demonstrate a plausible
claim that her religion was a motivating factor in adverse
employment actions. Therefore, her claims should have
survived dismissal despite lacking comparator evidence.
14
CONCLUSION
The petition for a writ of certiorari should be granted.
Respectfully submitted,
Theresa Kraft
Counsel of Record
Wilt Toikka Kraft, LLP
1629 K Street NW,
Suite 300
Washington, DC 20006
(202) 508-3647
tkraft@wtk-law.com
Counsel for Petitioner
October 14, 2025
APPENDIX
i
TABLE OF APPENDICES
Page
APPENDIX A — JUDGMENT OF THE UNITED
STATES COURT OF APPEALS FOR THE
DISTRICT OF COLU M BI A CIRCUIT,
FILED JUNE 20, 2025 . . . . . . . . . . . . . . . . . . . . . . . 1a
APPENDIX B — MEMORANDUM OPINION OF
THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBI A ,
FILED MARCH 21, 2024 . . . . . . . . . . . . . . . . . . . . . .9a
APPENDIX C — ORDER OF THE UNITED
S TAT E S DI S T R IC T C OU RT FOR
T H E DI S T R IC T OF C OLU M BI A ,
FILED MARCH 21, 2024 . . . . . . . . . . . . . . . . . . . . .25a
APPENDIX D — ORDER OF THE UNITED
STATES COURT OF APPEALS FOR THE
DISTRICT OF COLU M BI A CIRCUIT,
FILED JULY 16, 2025 . . . . . . . . . . . . . . . . . . . . . . . 26a
APPENDIX E — ORDER OF THE UNITED
STATES COURT OF APPEALS FOR THE
DISTRICT OF COLU M BI A CIRCUIT,
FILED JULY 16, 2025 . . . . . . . . . . . . . . . . . . . . . . . 28a
1a
A
APPENDIX AAppendix
— JUDGMENT
OF THE
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT,
FILED JUNE 20, 2025
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 24-5110
TAMI M. DIXON,
Appellant,
v.
SCOTT BESSENT, IN HIS OFFICIAL CAPACITY,
DEPARTMENT OF TREASURY, et al.,
Appellees.
Appeal from the United States District Court
for the District of Columbia
(No. 1:22-cv-03496)
Before: Pillard and Wilkins, Circuit Judges, and
Edwards, Senior Circuit Judge.
Filed June 20, 2025
JUDGMENT
This appeal was considered on the record from the
United States District Court for the District of Columbia
2a
Appendix A
and on the briefs of the parties. See D.C. Cir. R. 34(j). The
Court has accorded the issues full consideration and has
determined that they do not warrant a published opinion.
See D.C. Cir. R. 36(d). It is hereby
ORDERED AND ADJUDGED that the judgment of
the district court be AFFIRMED.
Petitioner Tami Dixon claims that she was constructively
discharged from her position as an enforcement officer for
the Office of Foreign Assets Control (OFAC or Office) in
the Department of the Treasury (Treasury) after her
requests for religious and medical exemptions from the
Office’s COVID-19 prevention policies were denied. Like
other federal employees, Dixon worked remotely during
the COVID-19 pandemic. However, in the spring of 2022
the Office directed Dixon to begin working in-office for a
few days per pay period. Per OFAC policy, employees like
Dixon who had decided not to receive a COVID-19 vaccine
were required to comply with masking/social distancing
rules and regularly test for COVID-19 before entering
agency buildings. First Amended Complaint (Compl.)
¶¶ 52-53, 58 (J.A. 116, 118). Dixon sought religious and
medical exemptions from the return-to-work policy (and
associated COVID-19 safety policies) that would allow
her to continue to work from home, citing primarily a
religious belief in the right to informed medical consent
rooted in Christian doctrine. The Department denied
her requests, explaining that Dixon had not “specifically
state[d] that [her] religious beliefs prohibit [her] from
complying with the safety precautions required to return
to the office,” that it was unclear whether she had a
3a
Appendix A
religious belief incompatible with the safety precautions
or only a “personal preference or desire to avoid returning
to the workplace,” and that there was no “identified . . .
medical condition or limitations that preclude[d] [her] from
working in-office or taking the precautions mandated.”
Compl. ¶¶ 58-59 (J.A. 118-19). Dixon left her position at
OFAC and took a lower-paid position at another agency.
After pursuing administrative remedies, Dixon filed
this suit in the district court against the Secretary of the
Treasury and several individual Treasury employees
(Appellees). In addition to claims under the Religious
Freedom Restoration Act and allegations of a hostile
work environment, both of which Dixon has abandoned on
appeal by not raising in her opening brief, see U.S. ex rel.
Kasowitz Benson Torres LLP v. BASF Corp., 929 F.3d
721, 728, 442 U.S. App. D.C. 205 (D.C. Cir. 2019), Dixon
alleged discrimination on the basis of disability in violation
of the Rehabilitation Act, 29 U.S.C. § 701 et seq., and on
the basis of religion in violation of Title VII of the Civil
Rights Act, 42 U.S.C. § 2000e et seq. See Compl. ¶¶ 102-29
(J.A. 127-30).
The district court granted Appellees’ motion to
dismiss, and Dixon appealed to this court. We have
jurisdiction under 28 U.S.C. § 1291. We review de novo
the dismissal for failure to state a claim, accepting Dixon’s
allegations as true and drawing all reasonable inferences
in her favor. Menoken v. Dhillon, 975 F.3d 1, 5, 449 U.S.
App. D.C. 381 (D.C. Cir. 2020).
4a
Appendix A
I.
Dixon first contests the dismissal of her Rehabilitation
Act claim. The Rehabilitation Act, which was a model for
and incorporates relevant precedent under the Americans
with Disabilities Act (ADA), protects federal employees
from discrimination on the basis of “disability.” Doak v.
Johnson, 798 F.3d 1096, 1098, 418 U.S. App. D.C. 375 (D.C.
Cir. 2015); see 29 U.S.C. § 791(f); 42 U.S.C. § 12102(1).
An individual qualifies as having a disability if they have
a “physical or mental impairment that substantially
limits one or more major life activities,” a “record of
such an impairment,” or is “regarded as having such
an impairment.” 42 U.S.C. § 12102(1). To make out a
“regarded-as” claim, the individual need not show that
the impairment “limits or is perceived to limit a major
life activity,” but the perceived impairment may not be
“transitory and minor.”1 Id. § 12102(3).
The precise nature of Dixon’s Rehabilitation Act
claim is somewhat difficult to discern. Dixon’s complaint
captions the claim as resting “on [a] perceived disability”
and alleges that she was regarded as being medically
unable to use a COVID-19 test that required inserting
“a Q-Tip like device” into her nostrils. Compl. ¶¶ 102-106
1. The Distr ict Cour t suggested that Di xon had to
demonstrate that she was regarded as having an impairment
that substantially limited a major life activity, Dixon v. Yellen,
No. 22-03496, 2024 U.S. Dist. LEXIS 77051, 2024 WL 1831967,
at *2 (D.D.C. Mar. 21, 2024), but that requirement for “regardedas” disability claims was dropped by Congress in the 2008
amendments to the ADA, see Dixon Br. 20-21.
5a
Appendix A
(J.A. 127-28). However, Dixon never explicitly alleges that
OFAC personnel had any such perception, nor any specifics
of the respiratory disability she implies they ascribed to
her. Nor does she challenge on appeal the district court’s
holding that she had failed to administratively exhaust any
claim “based on the theory that [Dixon] has a disability
that prevents her from using a nasal swab for testing.”
Dixon, 2024 U.S. Dist. LEXIS 77051, 2024 WL 1831967, at
*2 n.4. She has thus forfeited any claim of discrimination
based on an alleged inability—or perceived inability—to
use a COVID-19 test. See BASF Corp., 929 F.3d at 728.
Instead, Dixon principally argues that she is covered
by the Rehabilitation Act because Treasury “regarded
[her] as having a communicable disease unless and until
she provided proof of vaccination or negative test results.”
Dixon Br. 22. It is uncontested that Dixon was treated
differently from vaccinated colleagues based on her
unvaccinated status. But Dixon has failed to plausibly
allege that OFAC’s policy or treatment of her was based
on any perceived “impairment” within the meaning of the
Rehabilitation Act. The fact that an employer in the midst
of a global pandemic treats employees who refuse publichealth precautions against contagion as posing elevated
health risks to others in the workplace does not mean the
employer perceives those employees as disabled.
Even if we accept that Dixon has plausibly alleged
that her employer treated her as presumptively infected
with COVID-19, federal courts have generally treated
COVID-19 infection as too “transitory and minor” to
qualify as an impairment under the ADA. See Lundstrom
6a
Appendix A
v. Contra Costa Health Servs., No. 22-cv-06227, 2022 U.S.
Dist. LEXIS 214812, 2022 WL 17330842, at *5 (N.D. Cal.
Nov. 29, 2022) (collecting cases); 42 U.S.C. § 12102(3). A
perception that an employee is infected with COVID-19
may well qualify as a disability in some circumstances,
but a plaintiff bringing such a claim must allege that her
imputed infection was sufficiently serious and lengthy to
meet the ADA’s disability definition. Dixon has not done
so here. Dixon references federal guidance spelling out
how certain forms of “Long COVID” may meet the ADA
definition of a disability, but she has not alleged that she
was regarded as having Long COVID. See Dixon Br. 2223 (citing Guidance on “Long COVID” as a Disability
Under the ADA, Section 504, and Section 1557, Dep’t of
Health & Hum. Servs. & Dep’t of Just. (July 26, 2021),
https://perma.cc/LT6H-5UTS.).
In her reply brief, Dixon abandons her opening
brief’s theory that “[COVID-19] infection is her specific
[perceived] disability.” Reply Br. 7. She instead relies on
“disabilities, including, but not limited to, respiratory
disabilities, sleep disorder, [and] anxiety” that she asserts
should have been accommodated by allowing her to work
from home and avoid getting vaccinated or submitting
to COVID-19 testing. Dixon Reply Br. 6-7. Her failure
to preserve that claim provides further justification for
affirming the dismissal of Dixon’s Rehabilitation Act
claim.
II.
Dixon also appeals the dismissal of her religious
discrimination claim. To state a claim that OFAC violated
7a
Appendix A
Title VII by rejecting Dixon’s request to work remotely,
Dixon must allege facts that “raise an inference” that the
denial was based on her religion. Brown v. Sessoms, 774
F.3d 1016, 1022, 413 U.S. App. D.C. 328 (D.C. Cir. 2014).
The only way Dixon claims to have done so is by identifying
“similarly situated” employees, not part of the protected
class, who had their remote-work requests approved. But
she makes no plausible allegations that employees who
were permitted to work remotely were situated similarly
to her. See generally Breiterman v. U.S. Capitol Police, 15
F.4th 1166, 1174-75, 454 U.S. App. D.C. 369 (D.C. Cir. 2021);
cf. Wheeler v. Georgetown Univ. Hosp., 812 F.3d 1109,
1115-16, 421 U.S. App. D.C. 165 (D.C. Cir. 2016). Dixon
only generally alleges that “Remote Work Arrangements
were in fact being approved for other staff,” with “[a]t least
two persons” already receiving approval, and that she was
told “the only remote work assignments that were being
approved were for military spouses.” Compl. ¶¶ 43, 55, 65,
124 (J.A. 113, 117, 121, 130). Dixon’s acknowledgement that
the agency was apparently granting remote work solely
to employees with military spouses—a criterion she does
not claim applies to her—undercuts the inference she
would have us draw. Nothing in the complaint suggests
any staff members who received remote-work approval
were situated similarly to Dixon, or even that they did
not share her faith.
***
For the foregoing reasons, the District Court’s
dismissal is AFFIRMED. This disposition is unpublished.
8a
Appendix A
See D.C. Cir. R. 36(d). The Clerk is directed to withhold
issuance of the mandate until seven days after the
resolution of a timely petition for rehearing or rehearing
en banc. See Fed. R. A pp. P. 41(b); D.C. Cir. R. 41(a)(1).
Per Curiam
FOR THE COURT:
Clifton B. Cislak, Clerk
BY: /s/
Daniel J. Reidy
Deputy Clerk
9a
B
APPENDIX B — Appendix
MEMORANDUM
OPINION
OF THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA,
FILED MARCH 21, 2024
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Case No. 22-cv-3496 (APM)
TAMI M. DIXON,
Plaintiff,
v.
JANET L. YELLEN, et. al.,
Defendants.
Filed March 21, 2024
MEMORANDUM OPINION
I.
Plaintiff Tami M. Dixon began working for the Office
of Foreign Asset Control at the United States Department
of Treasury in March 2020. That same month, the
COVID-19 pandemic forced the Treasury Department
to institute a maximum telework policy, under which
Dixon transitioned to full-time remote work. Starting in
late 2021, the Department began planning for a return to
in-person work. At first, a federal mandate required all
10a
Appendix B
Treasury Department employees, unless exempted for
medical or religious reasons, to receive the COVID-19
vaccine. Then, after a federal court enjoined the mandate,
the Department required employees to provide either
proof of vaccination or a negative COVID-19 test before
entering an agency facility. Dixon sought exemptions
from these requirements, seeking a continuation of her
telework schedule to accommodate her religious beliefs.
The Treasury Department denied her exemption requests.
Dixon brings suit against (1) Defendant Janet
Yellen, in her official capacity as Secretary of Treasury
(“Secretary”), alleging claims under the Rehabilitation
Act and Title VII, and (2) against her former colleagues
Defendants Michael Liberman, Christa Pennifill, and
Jacqueline Brewer, in their individual capacities under
the Religious Freedom Restoration Act (collectively,
“Individual Defendants”). See Am. Compl., ECF No. 12
[hereinafter Compl.]. Before the court are Defendants’
motions to dismiss. See Mem. in Supp. of the Sec. of
Treasury’s Mot. to Dismiss, ECF No. 15-1 [hereinafter
Sec.’s Mot.]; Mem. of L. in Supp. of Individual Defs.’
Mot. to Dismiss, ECF No. 23-1 [hereinafter Individual
Defs.’ Mot.].1 For the reasons that follow, the motions are
granted.
1. The Secretary notes that although the caption of the
Amended Complaint indicates that the Individual Defendants
are sued in their individual and official capacities, Dixon’s
counsel communicated that the “intent is for Defendants
Lieberman, Pennifill, and Brewer to be [sued] in their individual
capacities only.” Sec.’s Mot. at 1 n.1. Dixon does not dispute
this representation. The court therefore treats the Individual
Defendants as sued only in their individual capacities.
11a
Appendix B
II.
To survive a motion to dismiss under Federal Rule
of Civil Procedure 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, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127
S. Ct. 1955, 167 L. Ed. 2d 929 (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).
When evaluating a Rule 12(b)(6) motion, the court
must accept a plaintiff’s factual allegations as true and
“construe the complaint ‘in favor of the plaintiff, who
must be granted the benefit of all inferences that can be
derived from the facts alleged.’” Hettinga v. United States,
677 F.3d 471, 476, 400 U.S. App. D.C. 218 (D.C. Cir. 2012)
(quoting Schuler v. United States, 617 F.2d 605, 608, 199
U.S. App. D.C. 23 (D.C. Cir. 1979)); Fed. R. Civ. P. 12(b)(6).
III.
The court first considers Dixon’s Title VII and
Rehabilitation Act claims against the Secretary, before
turning to her claim against the Individual Defendants. 2
2. Although Dixon brings her Title VII and Rehabilitation Act
claims against “all defendants,” neither statute creates a private
right of action against a government official in their individual
capacity. See Smith v. Janey, 664 F. Supp. 2d 1, 8 (D.D.C. 2009),
12a
Appendix B
A.
1.
The court begins with Dixon’s Rehabilitation Act
claim, which alleges discrimination based on a perceived
disability (Count Two). Compl. ¶¶ 102-115. A person is
disabled under the Rehabilitation Act if he “has a physical
or mental impairment which substantially limits one or
more of such person’s major life activities; has a record
of such an impairment; or is regarded as having such an
impairment.” Nurriddin v. Bolden, 674 F. Supp. 2d 64, 82
(D.D.C. 2009) (citing 29 U.S.C. § 705(20)(B)). Dixon relies on
the third statutory definition. An individual “is regarded
as disabled if her employer mistakenly believes that the
person has a physical impairment that substantially limits
one or more major life activities” or “mistakenly believes
that an actual, nonlimiting impairment substantially limits
one or more major life activities.” Thompson v. Rice, 422
F. Supp. 2d 158, 175 (D.D.C. 2006) (cleaned up).
Dixon argues that, because the Secretary’s policy
required unvaccinated employees to be tested, “there is a
presumption that the [employee], although asymptomatic,
aff’d sub nom. Smith v. Rhee, No. 09-7100, 2010 U.S. App. LEXIS
7360, 2010 WL 1633177 (D.C. Cir. Apr. 6, 2010) (“The defendants
are correct that there is no individual liability under Title VII[.]”);
Richardson v. Yellen, 167 F. Supp. 3d 105, 118 (D.D.C. 2016)
(finding that “only the heads of federal agencies in their official
capacity may be sued, not their individual employees,” under the
Rehabilitation Act). The court therefore dismisses the Title VII
and Rehabilitation Act claims against the Individual Defendants.
13a
Appendix B
has COVID[.]” Mem. in Supp. of Opp’n to Sec.’s Mot., ECF
No. 16 [hereinafter Pl.’s Opp’n to Sec.’s Mot.], at 7. 3 But
“[t]his theory of liability has been rejected by multiple
courts.” Schneider v. Cnty. of Fairfax, No. 22-cv-871
(LMB/WEF), 2023 U.S. Dist. LEXIS 35469, 2023 WL
2333305, at *4 (E.D. Va. Mar. 2, 2023), aff’d, No. 23-1303,
2023 U.S. App. LEXIS 22638, 2023 WL 5524752 (4th Cir.
Aug. 28, 2023) (collecting cases); cf. Gallo v. Wash. Nat’ls.
Baseball Club, LLC, No. 22-cv-01092 (APM), 2023 U.S.
Dist. LEXIS 40184, 2023 WL 2455678, at *4 (D.D.C. Mar.
10, 2023) (holding that a perceived disability “does not
cover a case where an employer perceives a person to be
presently healthy with only a potential to become ill and
disabled in the future”) (internal quotation marks and
citations omitted). Nothing in Dixon’s complaint plausibly
suggests that the Secretary believed that, because
Dixon declined vaccination against COVID-19, she had
a substantially limiting physical or mental impairment.
Moreover, even if there were such an allegation, “[f]ederal
courts generally agree that a COVID-19 infection is not a
disability.” Lundstrom v. Contra Costa Health Servs., No.
22-cv-06227 (CRB), 2022 U.S. Dist. LEXIS 214812, 2022
WL 17330842, at *5 (N.D. Cal. Nov. 29, 2022), aff’d, No.
22-16946, 2023 U.S. App. LEXIS 24887, 2023 WL 6140588
(9th Cir. Sept. 20, 2023) (collecting cases under the ADA).
The court therefore dismisses Dixon’s Rehabilitation Act
claim.4
3. References to Pl.’s Opp’n to Sec.’s Mot. are to the CM/
ECF page number.
4. To the extent that Dixon asserts Rehabilitation Act claims
based on the theory that she has a disability that prevents her from
14a
Appendix B
2.
Dixon alleges that the Secretary’s denial of her
requests to continue remote work constituted religious
discrimination under Title VII. She asserts claims of
substantive discrimination, hostile work environment, and
failure-to-accommodate (Count Three). Compl. ¶¶ 116-29.
The court considers each claim in turn.
a.
First, Dixon alleges that the Secretary discriminated
against her by denying her application for remote work
as a religious exemption to the vaccination and testing
requirements. Compl. ¶¶ 116-121. “[T]he two essential
elements of a discrimination claim are that (i) the plaintiff
suffered an adverse employment action (ii) because of
the plaintiff’s race, color, religion, sex, national origin,
age, or disability.” Baloch v. Kempthorne, 550 F.3d 1191,
1196, 384 U.S. App. D.C. 85 (D.C. Cir. 2008). Defendants
do not dispute that the denial of a remote work schedule
using a nasal swab for testing, Compl. ¶¶ 104-107, and that the
Secretary failed to accommodate this disability, Pl’s Opp’n to Sec.’s
Mot at 7, the court agrees with the Secretary that such claims were
not properly exhausted. See Sec.’s Mot. at 11; Reply in Supp. of
Sec.’s Mot., ECF No. 19, at 2; Spinelli v. Goss, 446 F.3d 159, 162,
371 U.S. App. D.C. 20 (D.C. Cir. 2006) (finding that “[t]he district
court . . . should have dismissed [the plaintiff’s] Rehabilitation
Act claim for lack of jurisdiction on the ground that he failed to
exhaust his administrative remedy” because “[s]uch jurisdictional
exhaustion, as we have called it, may not be excused”) (internal
quotation marks and citation omitted).
15a
Appendix B
constitutes an adverse employment decision. See Sec.’s Mot.
at 15-16. The question therefore is whether the Secretary’s
denial gives rise to “an inference of discrimination.” Stella
v. Mineta, 284 F.3d 135, 145, 350 U.S. App. D.C. 300 (D.C.
Cir. 2002). It does not.
Dixon argues that she has adequately pleaded “an
inference of discrimination” because her request to
work remotely as a religious accommodation was denied,
but “others . . . who were requesting [it] . . . for family
circumstance were approved.” Pl.’s Opp’n to Sec.’s Mot.
at 9. A plaintiff can show an inference of discrimination
by “demonstrating that she was treated differently from
similarly situated employees who are not part of the
protected class,” George v. Leavitt, 407 F.3d 405, 412,
366 U.S. App. D.C. 11 (D.C. Cir. 2005), but such method
of proof requires that “all of the relevant aspects of [the
plaintiff’s] employment situation were nearly identical to
those” of her comparators, Holbrook v. Reno, 196 F.3d 255,
261, 339 U.S. App. D.C. 4 (D.C. Cir. 1999) (emphasis added).
Dixon’s Complaint contains no details that would permit an
inference of religious animus. The Complaint only states
that employees who were granted leave to telework were
individuals with military families. Pl.’s Opp’n to Sec.’s
Mot. at 4. Without any allegations showing that Dixon
and these other employees performed “nearly identical”
duties, see Holbrook, 196 F.3d at 261, or any other evidence
to show that her requests to work remotely were denied
due to her religious beliefs, the Title VII discrimination
claim must be dismissed. See Black v. Guzman, No. 22cv-1873 (BAH), 2023 U.S. Dist. LEXIS 71145, 2023 WL
3055427, at *9 (D.D.C. Apr. 24, 2023) (“Failure to show that
16a
Appendix B
a similarly situated employee outside the same protected
class was treated differently generally warrants dismissal
of a Title VII disparate treatment discrimination claim.”)
(citing cases).
b.
Next, Dixon alleges that Secretary’s actions between
September 2021 and July 2022 “created a hostile work
environment.” Compl. ¶ 20. To state a hostile work
environment claim under Title VII, a plaintiff must allege
that her employer “subjected h[er] to discriminatory
intimidation, ridicule, and insult that is sufficiently severe
or pervasive to alter the conditions of [her] employment
and create an abusive working environment.” Baloch,
550 F.3d at 1201 (internal quotation marks and citation
omitted). A hostile work environment is one “permeated
with discriminatory intimidation, ridicule, and insult, that
is sufficiently severe or pervasive to alter the conditions
of the victim’s employment.” Harris v. Forklift Sys., Inc.,
510 U.S. 17, 21, 114 S. Ct. 367, 126 L. Ed. 2d 295 (1993)
(internal quotation marks and citation omitted)
Dixon’s hostile work environment claim centers
on allegations that (1) the Secretary sent frequent
communications urging staff to get vaccinated, some of
which “emphasized the use of discipline” for unvaccinated
employees; (2) her supervisor, Defendant Lieberman,
“peer pressure[d]” staff to get vaccinated and “was not
shy about making [known] his belief that vaccinated people
were good and unvaccinated people were bad”; and (3)
when Lieberman denied her religious accommodation
17a
Appendix B
request, he questioned the nature and tenets of her
religious beliefs and suggested that her request was based
on her personal preference to telecommute. Compl. ¶¶ 2526, 39-40, 61, 128-29. Accepted as true, these alleged acts
are insufficient to create a workplace “permeated with
discriminatory intimidation, ridicule, and insult” that is so
“severe or pervasive” such that it altered the conditions of
her work. Harris, 510 U.S. at 21 (internal quotation marks
and citation omitted); Faragher v. City of Boca Raton, 524
U.S. 775, 788, 118 S. Ct. 2275, 141 L. Ed. 2d 662, (1998)
(“‘[S]imple teasing’, offhand comments, and isolated
incidents (unless extremely serious) will not amount to
discriminatory changes in the ‘terms and conditions
of employment.’”). Nor do these allegations sufficiently
establish that any alleged hostile work environment was
based on her religion.
Numerous courts have rejected similar claims of
hostile work environment based on COVID-19-related
workplace requirements, which in some instances included
isolated commentary on an employee’s religious beliefs.
See, e.g., Grimes v. N. Y. & Presbyterian Hosp., No.
1:23-cv-652-MKV, 2024 U.S. Dist. LEXIS 32964, 2024
WL 816208, at *11 (S.D.N.Y. Feb. 26, 2024) (dismissing
hostile work environment claims predicated on reminders
of consequences of noncompliance with employer’s vaccine
mandate); Swanson v. Lilly USA, LLC, No. 23-cv-00831TWP/TAB, 2024 U.S. Dist. LEXIS 5861, 2024 WL 125978,
at *9 (S.D. Ind. Jan. 10, 2024) (rejecting Title VII hostile
work environment claim based on employer’s vaccine
mandate); Est. of Caviness v. Atlas Air, Inc., No. 22-cv23519-KMM, 693 F. Supp. 3d 1271, 2023 U.S. Dist. LEXIS
18a
Appendix B
167370, 2023 WL 6802950, at *6 (S.D. Fla. Sept. 20, 2023)
(rejecting hostile work environment claim where a plaintiff
claimed to having been once “ridiculed and mocked” for
his religious beliefs and removed from “flight status” due
to his religious beliefs); Anderson v. United Airlines, Inc.,
No. 23-cv-989, 2023 U.S. Dist. LEXIS 155985, 2023 WL
5721594, at *7 (N.D. Ill. Sept. 5, 2023) (rejecting hostile
work environment claim based on employer’s requirement
to wear a face mask or carry a vaccine card); Leake v.
Raytheon Techs. Corp., No. 22-cv-00436-TUC/RM, 2023
U.S. Dist. LEXIS 32177, 2023 WL 2242857, at *5 (D.
Ariz. Feb. 27, 2023) (“Plaintiffs’ allegation that a hostile
work environment was created through the requirement
that vaccination-exempt employees wear facial protection
and submit to weekly COVID-19 testing for a virus that
has claimed the lives of over one million Americans, and
counting, is shocking to the Court.”). Like the plaintiffs
in these cases, Dixon has not made out a plausible claim
of hostile work environment.
Dixon cannot save her hostile work environment claim
based on how she subjectively experienced the agency’s
actions. She contends that because of the agency’s “mob
mentality” towards COVID-19 vaccinations she became
“depressed and felt isolated,” Pl.’s Opp’n to Sec.’s Mot.
at 13, and that “she experienced anxiety related to her
concern that she would not be able to continue her job
without the Remote Work Agreement,” Compl. ¶ 126.
To be actionable, however, the alleged conduct must be
“objectively hostile,” such that “a reasonable person would
find the environment hostile or abusive.” Harris, 510
U.S. at 21. Plaintiff’s retelling of how she felt therefore
19a
Appendix B
is irrelevant. Plaintiff’s hostile work environment claim
is dismissed.
c.
Last, Di xon brings a failure-to-accommodate
claim. Title VII contains a provision prohibiting an
employer from discriminating based on an individual’s
religion “unless [the] employer demonstrates that he
is unable to reasonably accommodate to an employee’s
. . . religious observance or practice without undue
hardship on the conduct of the employer’s business.” 42
U.S.C. § 2000e(j) (2000). Neither the Supreme Court
nor the D.C. Circuit have articulated a framework under
Title VII for an alleged failure to accommodate an
employee’s religious beliefs. See Ansonia Bd. of Educ.
v. Philbrook, 479 U.S. 60, 67, 107 S. Ct. 367, 93 L. Ed. 2d
305 (1986) (declining petitioner’s request “to establish
for religious accommodation claims a proof scheme
analogous to that developed in other Title VII contexts,
delineating the plaintiff’s prima facie case and shifting
production burdens”); Lemmons v. Georgetown Univ.
Hosp., 431 F. Supp. 2d 76, 95 n.22 (D.D.C. 2006) (citing
Taub v. FDIC, No. 96-5139, 1997 U.S. App. LEXIS
41401, 1997 WL 195521, at *1 (D.C. Cir. Mar. 31, 1997)).
Defendant urges the court to evaluate Dixon’s claim
under a three-element standard used by various federal
courts, including ones in this District. Those elements
are that the plaintiff: (1) held a bona fide religious
belief conflicting with an employment requirement;
(2) informed her employers of this belief; and (3) was
disciplined for failure to comply with the conflicting
20a
Appendix B
employment requirement. Sec.’s Mot. at 19; see Rashad
v. Wash. Metro. Area Transit Auth., 945 F. Supp. 2d
152, 161 (D.D.C. 2013); Isse v. Am. Univ., 540 F. Supp.
2d 9, 29 (D.D.C. 2008); Lemmons, 431 F. Supp. 2d at
95 (collecting cases). Because Dixon does not object to
this framework, the court will apply it.
Dixon’s claim falters on the third element because
she never alleges that her non-compliance resulted in
discipline or even a threat of discipline.5 Dixon’s complaint
baldly states that “[t]he Treasury Department retaliated
against [her] when it threatened to bring disciplinary
action against her for working remotely,” Compl. ¶ 67, and
that “she [was] harmed by Defendant’s threat of increasing
discipline,” id. ¶ 111. She has not, however, alleged who
made these threats, the substance of the alleged threats,
when and how these threats were made, or any other
circumstances that would plausibly support a threat of
discipline. Moreover, paragraph 67 of the Complaint
merely references the charges she raised administratively,
see id. ¶ 67.e, which likewise provide no factual support for
5. Federal courts have reached opposing conclusions as to
whether a “threat of discipline” is sufficient to state a failure-toaccommodate claim. Compare Isse v. Am. Univ., 540 F. Supp. 2d
9, 29 n.24 (D.D.C. 2008) (noting the lack of precedent indicating
that an employee need only show “threatened adverse treatment”)
with Khan v. Fed. Rsrv. Bank of New York, No. 02-cv-8893-JCF,
2005 U.S. Dist. LEXIS 1543, 2005 WL 273027, at *7 (S.D.N.Y.
Feb. 2, 2005) (“[A]n instance of actual discipline is not necessary
to establish an adverse employment action: the threat of a sanction
is enough.”). But the court need not resolve the issue, as Dixon
has failed to allege a threat of discipline.
21a
Appendix B
any alleged threat of discipline, see Ex. 16 to Sec.’s Mot.,
ECF No. 15-17 (administrative complaint, dated August
10, 2022). Accordingly, Dixon’s failure-to-accommodate
claim is dismissed.
B.
Having dismissed both of her claims against the
Secretary, the court turns to Dixon’s Religious Freedom
Restoration Act (“RFRA”) claims against the Individual
Defendants. The RFRA, 42 U.S.C. § 2000bb et seq.,
authorizes individual-capacity suits against government
officials. Tanzin v. Tanvir, 592 U.S. 43, 47 (2020).
Defendants contend that “qualified immunity shields
[them] from [RFRA] liability because the complaint fails
to plausibly state a claim of violation of clearly established
law.” Individual Defs.’ Mot. at 2 (citing Mitchell v. Forsyth,
472 U.S. 511, 526, 105 S. Ct. 2806, 86 L. Ed. 2d 411 (1985)).
The court agrees.
Qualified immunity “protects government officials
from liability for civ il damages insofa r as thei r
conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person
would have known.” Pearson v. Callahan, 555 U.S. 223,
231, 129 S. Ct. 808, 172 L. Ed. 2d 565 (2009) (internal
quotation marks omitted). “Because qualified immunity
provides an immunity from suit rather than a mere
defense to liability, the viability of a duly asserted
qualified immunity defense should be resolved at the
earliest possible stage in litigation.” Bernier v. Allen,
22a
Appendix B
38 F.4th 1145, 1152, 457 U.S. App. D.C. 317 (D.C. Cir.
2022) (cleaned up). A defendant’s “conduct violates clearly
established law when, at the time of the challenged
conduct, the contours of a right are sufficiently clear
that every reasonable official would have understood that
what he is doing violates that right.” Ashcroft v. al-Kidd,
563 U.S. 731, 741, 131 S. Ct. 2074, 179 L. Ed. 2d 1149
(2011) (internal quotation marks omitted). Applying these
principles to the present case, the Individual Defendants
cannot be held liable unless Dixon can point to “clearly
established law” that would have put them on notice that
their denial of her telework request imposed a substantial
burden on her exercise of religion.
Dixon attempts to locate a violation of “clearly
established law” in two places. First, she points to the
RFRA and Title VII. Pl.’s Opp’n to Individual Defs.’ Mot.,
ECF No. 25, at 5-6. According to her, since the RFRA
was enacted in 1997, “federal employees in supervisory
positions were on notice of the potential violation of
religious rights.” Id. at 5. But such a right is far too
abstract to rebut an assertion of qualified immunity. The
Supreme Court has “repeatedly stressed that courts
may not define clearly established law at a high level
of generality,” as doing so “avoids the crucial question
whether the official acted reasonably in the particular
circumstances that he or she faced.” District of Columbia
v. Wesby, 583 U.S. 48, 63-64, 138 S. Ct. 577, 199 L. Ed.
2d 453 (2018) (internal quotation marks omitted). Simply
pointing to federal statutes in this case “is of little help
in determining whether the violative nature of particular
23a
Appendix B
conduct is clearly established.” See al-Kidd, 563 U.S. at
742.
S econd, Di xon cont ends that t he Ind iv idua l
Defendants were on notice from Executive Branch
guidance on “religious exercise and expression in the
federal workplace,” issued by both Presidents Clinton
and Trump. Pl.’s Opp’n to Individual Defs.’ Mot. at 5;
see Guidelines on Religious Exercise and Religious
Expression in the Federal Workplace, § l(A), Aug. 14,
1997; Off. Att ’y Gen., Mem. for Exec. Dep’ts & Agencies,
Federal Law Protections for Religious Liberty (Oct.
6, 2017). But these are not proper sources of “clearly
established law.” “To be sufficiently clearly established,
a right need not rest on controlling authority directly
on point, ‘but existing precedent must have placed the
statutory or constitutional question beyond debate.’”
Bernier, 38 F.4th at 1152 (quoting al-Kidd, 563 U.S.
at 741). “Qualified immunity may be unavailable when
plaintiffs identify ‘cases of controlling authority in their
jurisdiction at the time of the incident’ or ‘a consensus
of cases of persuasive authority such that a reasonable
officer could not have believed that his actions were
lawful.’” Id. (quoting Wilson v. Layne, 526 U.S. 603,
617, 119 S. Ct. 1692, 143 L. Ed. 2d 818 (1999)). Plaintiff
cites to no such law that would have put these Individual
Defendants on notice that enforcing a vaccine mandate
or a testing requirement, or rejecting her telework
application, violated the RFRA. Thus, qualified immunity
shields the Individual Defendants from liability.
24a
Appendix B
IV.
For the foregoing reasons, Defendants’ Motions to
Dismiss, ECF Nos. 15, 23, are granted. A final, appealable
order accompanies this Memorandum Opinion.
Dated: March 21, 2024
/s/ Amit P. Mehta
Amit P. Mehta
United States District
Court Judge
25a
C
APPENDIXAppendix
C — ORDER
OF THE
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA,
FILED MARCH 21, 2024
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Case No. 22-cv-3496 (APM)
TAMI M. DIXON,
Plaintiff,
v.
JANET L. YELLEN, et. al.,
Defendants.
Filed March 21, 2024
ORDER
For the reasons set forth in the court’s Memorandum
Opinion, ECF No. 28, Defendants’ Motions to Dismiss,
ECF Nos. 15, 23, are granted as to all claims against all
Defendants. This action is hereby dismissed.
This is a final, appealable order.
Dated: March 21, 2024
/s/ Amit P. Mehta
Amit P. Mehta
United States District
Court Judge
26a
Appendix
D UNITED STATES
APPENDIX D — ORDER
OF THE
COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT,
FILED JULY 16, 2025
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 24-5110
1:22-cv-03496-APM
September Term, 2024
TAMI M. DIXON,
Appellant,
v.
SCOTT BESSENT, IN HIS OFFICIAL CAPACITY,
DEPARTMENT OF TREASURY, et al.,
Appellees.
BEFORE: Pillard and Wilkins, Circuit Judges;
Edwards, Senior Circuit Judge.
Filed July 16, 2025
ORDER
Upon consideration of appellant’s petition for panel
rehearing filed on July 7, 2025, it is
27a
Appendix D
ORDERED that the petition be denied.
Per Curiam
FOR THE COURT:
Clifton B. Cislak, Clerk
BY: /s/
Lillian R. Wright
Deputy Clerk
28a
Appendix
E UNITED STATES
APPENDIX E — ORDER
OF THE
COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT,
FILED JULY 16, 2025
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 24-5110
1:22-cv-03496-APM
September Term, 2024
TAMI M. DIXON,
Appellant,
v.
SCOTT BESSENT, IN HIS OFFICIAL CAPACITY,
DEPARTMENT OF TREASURY, et al.,
Appellees.
BEFORE: Srinivasan, Chief Judge; Henderson,
Millett, Pillard, Wilkins, Katsas, Rao,
Walker, Childs, Pan, and Garcia, Circuit
Judges; Edwards, Senior Circuit Judge
Filed July 16, 2025
ORDER
Upon consideration of appellant’s petition for
rehearing en banc, and the absence of a request by any
member of the court for a vote, it is
29a
Appendix E
ORDERED that the petition be denied.
Per Curiam
FOR THE COURT:
Clifton B. Cislak, Clerk
BY: /s/
Lillian R. Wright
Deputy Clerk
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