Ali v. District of Columbia Government , 810 F. Supp. 2d 78 ( 2011 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
TARICK ALI, by his personal
representative, MONICA ALI,
Plaintiff,
v.
DISTRICT OF COLUMBIA Civil Action 08-01950 (HHK)
GOVERNMENT,
Defendant.
MEMORANDUM OPINION AND ORDER
Tarick Ali was employed by the District of Columbia in its Fire and Emergency Medical
Services Department (“the Department”). By his personal representative, Monica Ali,1 he brings
this action against the District alleging that the District violated Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e et seq, by discriminating against him on the basis of his religion and
retaliating against him for opposing that discrimination. Before the Court is the District’s motion
for summary judgment [#44], which argues that Ali did not experience any adverse action that
could support a Title VII claim. Upon consideration of the motion, the opposition thereto, the
record of this case, and oral argument of counsel, the Court concludes that the motion must be
granted in part and denied in part.
1
Tarick Ali is deceased. For the sake of simplicity, the Court will refer to Tarick
Ali as if he were the plaintiff in this case. See Ali v. D.C. Gov’t, 697 F. Supp. 2d 88, 89 n.1
(D.D.C. 2010).
I. BACKGROUND
At all times relevant to this action, Ali was a firefighter and emergency medical
technician in the employ of the Department. Ali was also a practicing Muslim; in accordance
with the dictates of his faith, he prayed five times each day. Ali’s claims against the District arise
from two altercations between him and his commanding officer, Lieutenant Michael Malinowski,
during the summer of 2006.
A. The June 15, 2006 Drill and Lineup
On June 15, 2006, Ali’s engine company was scheduled for a “physical wellness
assessment” and training exercise. Pl.’s Opp’n Ex. 26 (“Hutchinson Mem.”) at 1. At the
scheduled time, Malinowski called for the company to assemble at the truck. Ali and fellow
firefighter Marcus Craig did not appear. Malinowski then rang the firehouse bell, after which Ali
and Craig appeared.2 Malinowski angrily demanded an explanation; they responded that they
were praying. Malinowski then ordered Ali and Craig to prepare special reports explaining their
slow response time. Hutchinson Mem. at 1; Pl.’s Opp’n Ex. 5 (“Malinowski Dep.”) at 30.3
After the drill, Malinowski met with Craig, who complained that Malinowski did not treat
Black and Muslim firefighters as well as he treated other firefighters, and argued that
Malinowski’s order to prepare a special report was unfair. Craig Decl. ¶ 7. Malinowski told
Craig that the drill incident could be resolved informally and that Craig did not need to produce a
special report. He then said that “Craig must make a choice between his job and his religion
2
According to Craig, he and Ali responded “within seconds” of hearing the bell
sound. See Pl.’s Opp’n Ex. 6 (“Craig Decl.”) ¶ 4.
3
A “special report” is “an official communication to the department or a member
of the department.” Malinowski Dep. at 30.
2
when at work, for if the religious activities continued to interfere with his duties it could have a
negative impact on his job performance.” Hutchinson Mem. at 1. At the time of these events,
Craig was subject to a “last chance agreement,” i.e., he was effectively on probation and could be
subject to termination for even a minor departmental infraction. See Pl.’s Opp’n Ex. 4 (“Dove
Dep.”) at 41; Hutchinson Mem. at 1 & n.2; see also U.S. Dep’t of Air Force v. FLRA, 949 F.2d
475, 478 (D.C. Cir. 1991) (describing last chance agreements generally). Craig’s last chance
agreement did not, however, come up during his conversation with Malinowski. Craig Decl. ¶ 9.
Malinowski then had roughly the same conversation with Ali, telling him that he need not
prepare a special report, see Hutchinson Mem. at 1–2, and suggesting that he needed to decide
which was more important, his job or his religion. See Pl.’s Opp’n Ex. 12 (“Meeting Tr.”) at 7.
B. The June 27, 2006 Sign-In Order
The second incident underlying Ali’s claims occurred on June 27. Malinowski had
previously been ordered by his superior, Terry Reynolds, to enforce a requirement that all
firefighters “sign in and out for gear, relief, apparatus, etc.” Hutchinson Mem. at 2; see Pl.’s
Opp’n Exs. 8, 9 (emails from Reynolds to Malinowski and other officers reminding them to
“[m]ake sure that the journal is done per the orders”). A check of the journal that Ali’s engine
company was supposed to sign revealed to Malinowski that Ali had failed to do so; accordingly,
Malinowski ordered Ali to begin signing the journal. Because others, including Malinowski
himself, had previously failed to sign the journal, Ali believed that he had been unfairly singled
out. He thus drafted a special report that described the June 15 drill incident and the June 27
sign-in order as examples of harassing behavior by Malinowski. See Pl.’s Opp’n Ex. 10 (“June
3
27 Ali Report”). Malinowski forwarded the report to his superiors and requested an
investigation. Hutchinson Mem. at 2.
C. The July 5, 2006 Meeting and Mediation
On July 5, Ali and Malinowski met with Battalion Chief Stephen Dove regarding their
dispute. Ali complained that Malinowski’s remark that Ali needed to choose between his job
and his religion was “out of line.” Meeting Tr. at 5. Malinowski acknowledged making the
remark but asserted that he was responsible for the performance of his subordinates, which, he
averred, made the comment appropriate under the circumstances. Meeting Tr. at 7, 20.
Malinowski and Dove both suggested that if Ali pursued his complaint, other members of the fire
company, including Marcus Craig, would need to be disciplined for failing to sign the journals.
Meeting Tr. at 11–13. Ali protested: “say[ing] . . . if I push it on, . . . everybody else is going to
get in trouble . . . that’s like a form of extortion.” Meeting Tr. at 15. Dove responded that he
was “just letting [Ali] know the ramifications of” sending the report up the chain of command.
Meeting Tr. at 15. The meeting concluded with Dove ordering “fresh reports” from Malinowski
and other members of the fire company as to why firefighters were not signing the journals.
Meeting Tr. at 24; see Pl.’s Opp’n Ex. 23 (“Dove Report”) at 1–2. Ali’s special report was then
forwarded to Deputy Chief James Talbert, see Hutchinson Mem. at 3; Dove Report at 2, and the
other members of Ali’s engine company were summoned to a line-up and ordered to “do special
reports because of . . . Ali’s complaint.” Craig Decl. ¶ 11.
Shortly after the meeting concluded, Dove requested that Malinowski and Ali attempt to
resolve their dispute via mediation. They agreed, and met with Lieutenant Edgar J. Hoover that
afternoon. At Hoover’s prompting, Ali stated that an apology from Malinowski would settle the
4
matter. After a short discussion between Malinowski and Ali, Malinowski apologized and the
two shook hands. See Pl.’s Opp’n Ex. 25 (“Hoover Report”) at 1. At Talbert’s request, relayed
via Dove, both men then prepared statements saying that their “private disagreement” had been
settled. See Pl.’s Opp’n Ex. 11; Dove Report at 2. Upon receiving these statements, Talbert
withdrew Ali’s special report. According to Hutchinson, Ali later explained that he had agreed to
withdraw his report “because he had no desire to have Craig disciplined and perhaps terminated.”
Hutchinson Mem. at 3.
D. Hutchinson’s EEO Investigation and Recommendations
In the weeks following their mediation, Malinowski and Ali appeared to work
comfortably together. In late September, however, Ali raised Malinowski’s job-or-religion
remark with Detria Hutchinson, the Department’s Diversity/EEO Program Manager. After an
investigation, Hutchinson concluded that some “corrective action” against Malinowski was
“imperative,” and recommended that he enroll in two courses through the District’s Center for
Workforce Development, on his own time and without overtime pay. Hutchinson Mem. at 4.
She also found that Dove’s July 5 statement that Ali’s pursuit of his report would require Dove to
address allegations against other firefighters to be “unacceptable” and an “interference [with]
Ali’s EEO rights.” Hutchinson Mem. at 4. She therefore “cite[d]” Dove for interfering with
Ali’s right to participate effectively in the EEO process, and recommended that Dove enroll in
Workforce Development courses and be disciplined appropriately. Finally, Hutchinson
recommended that Talbert enroll in a Workforce Development course because he had too readily
dropped the investigation into Ali’s report. See Hutchinson Mem. at 4.
5
II. LEGAL STANDARD
A motion for summary judgment should be granted only “if the movant shows that there
is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” FED . R. CIV . P. 56(a). A material fact is one that “might affect the outcome of the suit
under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The
movant must support its factual positions by “citing to particular parts of materials in the record,
including depositions, documents, electronically stored information, affidavits or declarations,
stipulations . . . , admissions, interrogatory answers, or other materials.” FED . R. CIV . P.
56(c)(1)(A); see Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
If the moving party meets its burden, the non-moving party must then establish that a
genuine dispute as to any material fact actually exists. See Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986). To meet its burden, the non-moving party must show
that “the evidence is such that a reasonable jury could return a verdict” in its favor. Anderson,
477 U.S. at 248. Such evidence must consist of more than mere unsupported allegations or
denials and must set forth specific facts showing that there is a genuine dispute for trial. See FED .
R. CIV . P. 56(c)(1), (e); Celotex, 477 U.S. at 322 n.3. If the evidence is “merely colorable” or
“not significantly probative,” summary judgment may be granted. Anderson, 477 U.S. at
249–50.
6
III. ANALYSIS
A. Evidence Properly Before the Court
Rule 56 allows a party seeking or opposing summary judgment to “object that the
material cited to support or dispute a fact cannot be presented in a form that would be admissible
in evidence.” FED . R. CIV . P. 56(c)(2). The District objects that many of the exhibits that Ali
presents in opposing the District’s summary judgment motion constitute or contain inadmissible
hearsay. The District does not explain the basis for its objection to any specific exhibits, merely
listing those that it finds problematic. The District’s argument is largely unavailing.
To begin with, the District overlooks two doctrinal distinctions that are important here.
The first is the difference between evidence that is admissible at trial and evidence that the Court
may consider at summary judgment. At summary judgment, material will be disregarded only if
it “cannot be presented in a form that would be admissible in evidence” at trial. FED . R. CIV . P.
56(c)(2). Thus, to defeat summary judgment, a nonmovant “is not required to produce evidence
in a form that would be admissible at trial,” so long as her evidence is “capable of being
converted into admissible evidence.” Catrett v. Johns-Manville Sales Corp., 826 F.2d 33, 38
(D.C. Cir. 1987) (emphasis added); see Gleklen v. Democratic Congr. Campaign Comm., Inc.,
199 F.3d 1365, 1369 (D.C. Cir. 2000). Consequently, the District is wrong to assert that the
Court may not consider Ali’s exhibits if they “cannot be introduced at trial in this format.” See
Def.’s Reply at 3 (emphasis added).
The District’s second oversight relates to the definition of hearsay itself. Hearsay is an
out-of-court statement that is “offered in evidence to prove the truth of the matter asserted.” FED .
R. EVID . 801(c). The District’s blunderbuss objection to Ali’s exhibits overlooks the fact that
7
many of them are not “offered . . . to prove the truth of the matter asserted.” See 2 MCCORMICK
ON EVID . § 249 (6th ed. 2009) (“If [a] statement is not an assertion or is not offered to prove the
facts asserted, it is not hearsay.”).
When these distinctions are applied to Ali’s exhibits, it is clear that the majority would be
admissible at trial for at least some purpose, and that others are “capable of being converted into
admissible evidence” such that the Court may consider them now. Catrett, 826 F.2d at 38. First,
many of Ali’s exhibits are not offered to prove the facts asserted therein. See Pl.’s Opp’n Exs. 8
(email from Reynolds ordering Malinowski and others to have officers sign journals), 9 (same),
11 (Ali report stating that his private dispute with Malinowski had been resolved informally),
13–22 (fire company journal entries). These materials are offered to show that certain statements
were made or to establish the effect of those statements on their recipients, and thus are not
hearsay. See 2 MCCORMICK ON EVID . § 249. Likewise, Dove’s special report, which describes
Ali’s complaint and the events of July 5, is not hearsay because it is an admission by a party
opponent. See FED . R. EVID . 801(d)(2)(D); Talavera v. Shah, 638 F.3d 303, 309–10 (D.C. Cir.
2011) (in employment cases, statements by officials who were responsible for or involved in the
challenged actions are party admissions under Rule 801(d)(2)).
Further, the record of the July 5 meeting between Ali, Dove, and Malinowski — although
hearsay in its present form — is obviously “capable of being converted into admissible
evidence.” Catrett, 826 F.2d at 38. The record is merely a written transcription of an audio tape
that recorded the conversation at the meeting. See Meeting Tr. at 27. Because the District offers
no basis for the Court to conclude that the audio tape itself would not be admissible at trial, the
transcript may be considered for the purposes of summary judgment. See Catrett, 826 F.2d at 38
8
(allowing the use of a letter at summary judgment because “even if the . . . letter itself would not
be admissible at trial, [its proponent] has gone on to indicate that the substance of the letter is
reducible to admissible evidence in the form of trial testimony”).
Finally, the memorandum written by Detria Hutchinson, describing the entire course of
events from the June 15 drill incident through Hutchinson’s investigation of Ali’s complaints in
September, is hearsay but is nevertheless admissible under Rule 803(8)(C)’s exception for
investigative reports. See Allen v. Chi. Transit Auth., 317 F.3d 696, 700 (7th Cir. 2003) (holding
that findings by investigators from the defendant-agency’s affirmative action unit were
“admissible . . . as an investigative report of a public agency” in a Title VII suit); cf. Chandler v.
Roudebush, 425 U.S. 840, 863 n.39 (1976) (“Prior administrative findings made with respect to
an employment discrimination claim may, of course, be admitted as evidence at a federal-sector
trial de novo.” (citing FED . R. EVID . 803(8)(C)).4
The District is correct, however, that some of Ali’s exhibits contain inadmissible or
incompetent material. First, and most crucially, the entire special report that Ali drafted on June
27 describing his interactions with Malinowski is hearsay. The report is plainly offered to prove
the events described therein, and, because Ali is deceased, is not “capable of being converted into
4
Rule 803(8)(C) allows for the admission of public records or reports, in any form,
containing “factual findings resulting from an investigation made pursuant to authority granted
by law, unless the sources of information or other circumstances indicate lack of
trustworthiness.” FED . R. EVID . 803(8)(C). Because the District has made no attempt to show
that “the sources of information or other circumstances” surrounding the memorandum “indicate
lack of trustworthiness,” the Court will not disregard it at this time. See In re Korean Air Lines
Disaster of Sept. 1, 1983, 932 F.2d 1475, 1482 (D.C. Cir. 1991) (“Rule 803(8)(C) assumes
admissibility in the first instance. . . .”)(quoting FED . R. EVID . 803 advisory committee note); Id.
(“The burden is on the party disputing admissibility to prove the factual finding to be
untrustworthy.”) (quoting United States v. Am. Tel. & Tel. Co., 498 F. Supp. 353, 364 (D.D.C.
1980)).
9
admissible evidence” in the form of trial testimony. Gleklen, 199 F.3d at 1369; see FED . R. CIV .
P. 56(c)(2). Second, because Ali’s complaint and the District’s answer are unverified, they are
“accorded no evidentiary weight in deciding [the District’s] summary judgment motion.”
Gallucci v. Schaffer, 507 F. Supp. 2d 85, 92 (D.D.C. 2007). Finally, certain otherwise-
admissible exhibits contain some hearsay statements. See, e.g., Hoover Report at 1 (repeating
Ali’s description of Malinowski’s job-or-religion comment); Dove Report at 1 (same). Although
the Court will not, of course, rely on such statements, the District is wrong to suggest that the
Court may not consider these documents simply because they contain some inadmissible
material; the hearsay rule excludes statements, not documents. See FED . R. EVID . 801–802.5
Having resolved the District’s evidentiary arguments, the Court now turns to the merits of Ali’s
claims.
B. Ali’s Discrimination and Retaliation Claims
Ali brings two Title VII claims against the District: he alleges that the Department
discriminated against him on the basis of his religion, and that it retaliated against him for
objecting to that discrimination.6 The District argues that neither claim can survive summary
5
Finally, the Court makes no use of some of the documents to which the District
objects, and thus does not address their admissibility. See Pl.’s Opp’n Exs. 27 (Smith Mem.), 28
(Herlihy Mem.).
6
The “Jurisdiction and Venue” section of Ali’s amended complaint states that the
Court has jurisdiction over Ali’s suit not only under Title VII of the Civil Rights Act of 1964, but
also under the Civil Rights Act of 1991, 42 U.S.C. § 1981a, and the D.C. Human Rights Act,
D.C. Code § 2-1401.01 et seq. See Am. Compl. ¶ 2. The portion of the complaint that sets out
Ali’s claims, however, makes no mention of these other provisions, and Ali’s opposition to the
District’s summary judgment motion refers only to Title VII. Accordingly, the Court does not
understand Ali to raise claims under these other provisions. Further, § 1981a does not create a
cause of action, but rather provides for damages in certain discrimination cases. See 42 U.S.C.
§ 1981a(a)(1).
10
judgment because Ali has failed to establish that he experienced an adverse action within the
meaning of Title VII. Because the adverse action requirement operates differently in
discrimination and retaliation cases, the Court will address each claim separately.
1. Discrimination on the Basis of Religion
Title VII makes it unlawful for an employer “to discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of employment, because of such
individual’s . . . religion.” 42 U.S.C.A. § 2000e-2(a)(1). At the summary judgment stage, Title
VII discrimination claims are analyzed using the burden-shifting framework of McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973), which first requires the plaintiff to establish a
prima facie case of discrimination. Id. at 802.7 To do so, a plaintiff must show that: (i) she is a
member of a protected class; (ii) she suffered an adverse employment action; and (iii) the
unfavorable action gives rise to an inference of discrimination. George v. Leavitt, 407 F.3d 405,
412 (D.C. Cir. 2005) (citing Stella v. Mineta, 284 F.3d 135, 145 (D.C. Cir. 2002)). The District
seeks summary judgment on Ali’s discrimination claim on the sole ground that he is unable to
establish a prima facie case because he cannot show that he suffered an adverse employment
action.
In Title VII discrimination cases, an adverse employment action is “a significant change
in employment status, such as hiring, firing, failing to promote, reassignment with significantly
7
The D.C. Circuit has explained that “where an employee has suffered an adverse
employment action and an employer has asserted a legitimate, non-discriminatory reason for the
decision,” the district court should set aside the burden-shifting framework and move directly to
the ultimate issue of discrimination. Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494
(D.C. Cir. 2008). Here, however, the District disputes that Ali has in fact suffered an adverse
employment action; thus, the McDonnell Douglas structure still governs.
11
different responsibilities, or a decision causing significant change in benefits.” Taylor v. Small,
350 F.3d 1286, 1293 (D.C. Cir. 2003) (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742,
761 (1998)) (internal quotation marks omitted). Put another way, a discrimination plaintiff
alleging adverse action must have experienced “materially adverse consequences affecting the
terms, conditions, or privileges of employment or future employment opportunities such that a
reasonable trier of fact could find objectively tangible harm.” Forkkio v. Powell, 306 F.3d 1127,
1131 (D.C. Cir. 2002) (citing Brown v. Brody, 199 F.3d 446, 457 (D.C. Cir. 1999)).
Here, Ali identifies a raft of events that, he avers, constitute adverse action: Malinowski’s
job-or-religion comment to Ali; Ali’s meeting with Dove and Malinowski; the subsequent
mediation with Hoover; Dove and Malinowski’s threat to discipline Marcus Craig, which could
have caused Craig’s termination; and Dove’s threat to require the fire company to prepare special
reports regarding their failure to sign the journals. See Pl.’s Opp’n at 24. None of these events,
however, constitutes adverse action for the purposes of a Title VII discrimination claim.8
As explained above, a finding of adverse action requires “objectively tangible harm.”
Forkkio, 306 F.3d at 1131. Ali identifies no such harm that resulted from Malinowski’s job-or-
religion comment. Malinowski was certainly criticizing Ali’s performance (in a particularly
insensitive fashion), but criticism from a supervisor that does not affect a subordinate’s
employment status or opportunities is not adverse action. See Taylor, 350 F.3d at 1293 (citing
8
Ali also identifies two other ostensibly adverse actions: being “forced” to change
the title of (and “strongly encouraged” to change the wording of) his June 27 special report, and
“being ordered to prepare a special report for allegedly not signing the journal where others had
not done so.” Pl.’s Opp’n at 24. These events, however, are both described only in Ali’s report
itself, see June 27 Ali Report at 1, which is pure hearsay and incapable of conversion into
admissible evidence. See supra section III.A. Moreover, there is no indication that either had
any tangible consequences for Ali.
12
Brown, 199 F.3d at 457–58).9 Likewise, Ali identifies no consequences for “the terms,
conditions, or privileges of [his] employment,” Forkkio, 306 F.3d at 1131, that stemmed from his
July 5 meeting with Dove and Malinowski or from the mediation with Hoover later that day.10
Dove and Malinowski’s threats to discipline Craig and require the other members of the
fire company to write special reports present a closer question, but still do not rise to the level of
adverse action. Malinowski threatened to “charge” Craig if Ali pursued his complaint, Meeting
Tr. at 12, which, as a result of Craig’s last chance agreement, apparently amounted to a threat to
fire him. See Dove Dep. at 41. However, there is no indication that this threat was ever carried
out, and “mere threats . . . do not rise to the level of an adverse employment action because they
result in no materially adverse consequences or objectively tangible harm.” Valles-Hall v. Ctr.
For Nonprofit Advancement, 481 F. Supp. 2d 118, 144 (D.D.C. 2007); accord Lutkewitte v.
Gonzales, 436 F.3d 248, 271 (D.C. Cir. 2006) (Brown, J., concurring); Cromwell v. Wash. Metro.
Area Transit Auth., 2006 WL 2568009, at * 7 (D.D.C. Sept. 5, 2006).11 And, although the threat
9
Ali also fails to link the job-or-religion remark to any other putatively adverse
action. His case is thus different from those where an official responsible for a challenged
employment action has made a discriminatory remark (which can suggest that the action was
motivated to some degree by discriminatory animus). In such cases, it is the challenged
employment decision, not the comment itself, that satisfies the adverse action requirement. See,
e.g., Prater v. FedEx Corp. Servs., Inc., 2009 WL 1725978, at *6–7 (D.D.C. June 18, 2009)
(“[A] sufficient nexus between discriminatory statements and an adverse employment action can
create an inference of discrimination.” (emphasis added)).
10
The possibility that Ali’s presence at the meeting and mediation may have been
mandatory, see Pl.’s Opp’n at 24, is irrelevant without some indication of tangible employment
consequences. Further, Ali’s characterization of the meeting and mediation as “forced” appears
to be without support in the record.
11
The Court notes that this Court and others in this district have attributed the
language “mere threats . . . do not rise to the level of an adverse employment action because they
result in no materially adverse consequences or objectively tangible harm” to the D.C. Circuit’s
13
to order the other members of the engine company to write special reports was carried out, see
Craig Decl. ¶ 11, there is no suggestion in the record that Craig or any of Ali’s colleagues
experienced any tangible employment consequences as a result.12 Thus, even leaving aside the
fact that these threats were not directed at Ali himself, no reasonable juror could conclude that
they constituted adverse action.
Nor can these events combine to create a hostile work environment.13 A work
environment, even if objectionable, does not become actionable unless the offensive conduct
“permeate[s] [the workplace] with discriminatory intimidation, ridicule, and insult that is
sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an
abusive working environment.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81
(1998) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (internal quotation marks
omitted). A plaintiff “must demonstrate that the alleged events leading to the hostile work
environment were connected, since ‘discrete acts constituting discrimination or retaliation claims
. . . are different in kind from a hostile work environment claim that must be based on severe and
opinion in Forkkio, 306 F.3d at 1131. As noted above, however, this language actually
originated in the district court opinion in Valles-Hall, 481 F. Supp. 2d at 144.
12
As noted above, the only information in the record on the nature of “special
reports” suggests that they are not inherently disciplinary or punitive, and can serve to
communicate any type of information. See supra note 3. Accordingly, being required to draft
one cannot, at least on this record, constitute adverse action. Cf. Taylor v. Solis, 571 F.3d 1313,
1321 (D.C. Cir. 2009) (requiring an employee to submit reports on the status of her work did not
constitute materially adverse action for retaliation purposes).
13
Although, at the hearing held before the Court, the District contended that Ali’s
amended complaint does not present a “hostile work environment” claim, those words do appear
in the complaint. See Am. Compl. ¶ 32. Thus, although Ali’s opposition fails to make any
argument on this point, the Court briefly addresses the issue here.
14
pervasive discriminatory intimidation or insult.’” Badibanga v. Howard Univ. Hosp., 679 F.
Supp. 2d 99, 103 (D.D.C. 2010) (quoting Lester v. Natsios, 290 F. Supp. 2d 11, 33 (D.D.C.
2003)) (omission in original). Here, Ali merely asserts that each of the events that he alleges
were discriminatory also contributed to a hostile work environment; but a plaintiff “cannot so
easily bootstrap discriminatory claims into a hostile work environment claim.” Nurriddin v.
Goldin, 382 F. Supp. 2d 79, 108 (D.D.C. 2005) (citing Lester, 290 F. Supp. 2d at 33). Ali makes
no effort to show that these events collectively created an abusive working environment severe or
pervasive enough to alter the conditions of his employment. See Oncale, 523 U.S. at 81. Thus,
his discrimination claim cannot proceed under either a discrete disparate impact theory or a
hostile work environment theory, and summary judgment for the District on this claim is
required.
2. Retaliation for Opposing Religious Discrimination
In addition to banning discrimination, Title VII also prohibits an employer from
retaliating against an employee “because he has opposed any practice made an unlawful
employment practice by [Title VII], or because he has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing under” Title VII. 42
U.S.C. § 2000e-3(a). To establish a prima facie case of retaliation, a plaintiff must show that: (i)
she engaged in protected activity; (ii) she suffered a materially adverse action by her employer;
and (iii) a causal connection existed between the two. Wiley v. Glassman, 511 F.3d 151, 155
(D.C. Cir. 2007) (citing Brown, 199 F.3d at 452). As above, the District challenges Ali’s prima
facie case on the sole ground that he did not suffer a judicially cognizable adverse action.
15
The scope of the adverse action requirement is broader in retaliation cases than in
discrimination cases. See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 63–64 (2006).
A retaliation plaintiff may prevail by showing materially adverse action, which is “not limited to
discriminatory actions that affect the terms and conditions of employment,” id. at 64, but rather
reaches any conduct that “well might have dissuaded a reasonable worker from making or
supporting a charge of discrimination.” Id. at 68 (quoting Rochon v. Gonzales, 438 F.3d 1211,
1213 (D.C. Cir. 2006)) (internal quotation marks omitted); see Baloch v. Kempthorne, 550 F.3d
1191, 1198 n.4 (D.C. Cir. 2008). Whether any given act would have that effect “will often
depend upon the particular circumstances. Context matters.” Burlington, 548 U.S. at 69.
Significantly, while unrealized threats cannot constitute adverse action in discrimination cases,
they can be materially adverse for retaliation purposes. See Gaujacq v. EDF, Inc., 601 F.3d 565,
578 (D.C. Cir. 2010) ( “A threatening verbal statement, standing alone, might well constitute a
materially adverse action.”).14
Here, Ali identifies as materially adverse the same range of actions that he asserts were
adverse for the purposes of his discrimination claim. See Pl.’s Opp’n at 24. And here, as there,
most do not rise to the level of adverse action, even under the broader definition employed in
retaliation cases. One action, however, clears the bar of material adversity: Dove and
14
The Court agrees with Ali that the District appears to have confused the two
adverse action standards. The District relies on Raymond v. U.S. Capitol Police Bd., 157
F. Supp. 2d 50 (D.D.C. 2001), for the proposition that although “an employee need not be fired,
demoted or transferred to make out a case of retaliation,” she must show “a tangible change in
responsibilities or working conditions that constitutes a material employment disadvantage.” Id.
at 56 (quoting Gary v. Wash. Metro. Area Transit. Auth., 886 F. Supp. 78, 90 (D.D.C. 1995))
(internal quotation marks omitted). Raymond, however, predates both the D.C. Circuit’s
recognition of the difference in scope between the two standards, see Rochon, 438 F.3d at 1217–
18, and the Supreme Court’s ratification of that conclusion in Burlington, 548 U.S. at 68.
16
Malinowski’s threat to discipline, and likely terminate, Ali’s coreligionary and close friend
Marcus Craig.
At the July 5 meeting, Dove asserted that if Ali pursued his complaint against
Malinowski, an investigation into the conduct of Ali’s fellow firefighters would result. See
Meeting Tr. at 11–12. Malinowski then said:
I would have to charge Marcus. . . . and I don’t have any choices. I’ve got to send a
report up explaining that people weren’t doing their jobs. And I was seeing it. And
it forces me to investigate, and it forces me to make people do their reports, and then
that forces me to charge them.
Meeting Tr. at 12–13. Ali protested: “you say . . . if I push on, you know, everybody else is
going to get in trouble. I mean, that’s like a form of extortion.” Meeting Tr. at 15. Dove
responded: “No it isn’t. If you want to send this thing through, I’ll send it through. I’m just
letting you know the ramifications of it.” Meeting Tr. at 15. After the meeting ended, the
members of Ali’s company were told during a lineup that they would have to draft special reports
“because of Firefighter Ali’s complaint.” Craig Decl. ¶ 11.
At the time of the meeting, all three men present were aware that Craig was subject to a
last chance agreement, under which any disciplinary infraction could lead to his termination. As
Dove put it during his deposition, “Marcus would have had the most to lose from anything like
[the fire department taking action against Ali’s company members] . . . . I mean, and that was
[Ali’s] best friend.” Dove Dep. at 41. Indeed, Ali later told Hutchinson that “he withdrew his
. . . special report because he had no desire to have Craig disciplined and perhaps terminated.”
Hutchinson Mem. at 3. On these facts, a reasonable juror could easily conclude that Dove and
17
Malinowski’s remarks were intended, and understood, as a serious threat to fire Craig if Ali
pursued his complaint.
A credible threat of termination might well dissuade a reasonable employee from
pursuing a charge of discrimination. See Burlington, 548 U.S. at 73 (“A reasonable employee
facing the choice between retaining her job (and paycheck) and filing a discrimination complaint
might well choose the former.”); EEOC v. Creative Networks, LLC, 2009 WL 597214, at *6
(D. Ariz. Mar. 9, 2009) (“[T]hreats of termination . . . [directed at the plaintiff are] reasonably
likely to deter others from engaging in protected activity.”); Rhodes v. Napolitano, 656 F. Supp.
2d 174, 185–86 (D.D.C. 2009) (holding that a fruitless misconduct investigation that culminated
in a letter threatening the plaintiff with discipline up to and including termination was materially
adverse); cf. Gaujacq, 601 F.3d at 578 (stating that verbal threats can constitute materially
adverse action, but holding that the deterrent effect of the termination threat alleged by the
plaintiff was undermined by its context).
Moreover, a retaliatory action need not be directed at the party who engaged in the
protected conduct that prompted it in order to be materially adverse. The Supreme Court recently
held that Title VII was violated when an employee’s fiancé was fired in retaliation for the
employee’s protected activity. See Thompson v. N. Am. Stainless, LP, —U.S.—, 131 S. Ct. 863,
868 (2011) (“We think it obvious that a reasonable worker might be dissuaded from engaging in
protected activity if she knew that her fiancé would be fired.”); see also DeMedina v. Reinhardt,
444 F. Supp. 573, 580 (D.D.C. 1978) (reasoning that “[s]ince tolerance of third-party reprisals
would, no less than the tolerance of direct reprisals, deter persons from exercising their protected
18
rights under Title VII,” Title VII’s anti-retaliation provisions must necessarily reach materially
adverse actions aimed at third parties).
Based on the foregoing — and particularly on the Supreme Court’s opinion in Thompson
— the Court concludes that Ali has established a genuine dispute of fact as to whether he
experienced materially adverse action. To be sure, there are factual differences between this case
and Thompson: Craig was threatened with termination rather than actually fired, and he was Ali’s
“best friend,” not his fiancé. Dove Dep. at 41. It is thus unclear precisely where this case falls
on the continuum between “firing a close family member,” which “will almost always meet the
Burlington standard,” and “inflicting a milder reprisal on a mere acquaintance,” which “will
almost never do so.” Thompson, 131 S. Ct. at 868. Even so, to stave off summary judgment, Ali
need only show that a reasonable juror could conclude that the threat “well might have ‘dissuaded
a reasonable worker from making or supporting a charge of discrimination.’” Burlington, 548
U.S. at 68 (quoting Rochon, 438 F.3d at 1213) (emphasis added); see Fallon v. Potter, 277 F.
App’x 422, 429 n.29 (5th Cir. 2008) (stating that, under Burlington, whether an action is
materially adverse “is a fact issue for the jury”). This burden is “not onerous.” Tex. Dep’t of
Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Common sense suggests, and DeMedina
and Thompson support the conclusion that, a reasonable worker would be deterred from pursuing
a discrimination complaint by a credible threat to fire a close friend.15 And finally, the causal
15
This conclusion is further bolstered by Hutchinson’s determination that Dove’s
assertion that Ali’s complaint “would require Dove to address the allegations made against other
members [of the engine company] is unacceptable and is an . . . interference with Firefighter
Ali’s rights to effectively participate in the EEO process.” Hutchinson Mem. at 4 (emphasis
added); cf. Allen, 317 F.3d at 700 (holding that the district court erred by disregarding the
conclusions of agency affirmative action investigators regarding an agency decisionmaker’s
motivation for taking challenged employment action).
19
connection between the threat and Ali’s protected activity is obvious: Dove and Malinowski’s
remarks during the meeting expressly tied the threatened consequences for Craig and the other
firefighters to Ali’s pursuit of his discrimination complaint (which the District does not dispute
was protected activity under Title VII). Consequently, summary judgment for the District on
Ali’s retaliation claim is not warranted.16
IV. CONCLUSION
For the foregoing reasons, it is this 31st day of August, 2011, hereby
ORDERED that defendant’s motion for summary judgment [#44] is hereby GRANTED
as to plaintiff’s claim of religious discrimination and DENIED as to plaintiff’s claim of
retaliation.
Henry H. Kennedy, Jr.
United States District Judge
16
As with his discrimination claim, however, Ali has provided no support for the
proposition that the Department’s allegedly retaliatory actions combined to create a hostile work
environment; accordingly, Ali’s retaliation claim may proceed only under the theory that Ali
experienced a discrete, materially adverse retaliatory action. See Nurriddin, 382 F. Supp. 2d at
108.
20