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Isse v. American University

February 25, 2008

MOHAMMED ISSE, PLAINTIFF,
v.
AMERICAN UNIVERSITY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION

Pro se Plaintiff, Mohammed Isse, brings this action against his former employer, Defendant American University ("Defendant" or the "University"), pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., alleging that the University unlawfully terminated his employment as a shuttle bus driver because of Plaintiff's Muslim religion and Somalian national origin. Plaintiff's Complaint also includes a retaliation claim, which Plaintiff has now abandoned, and names as an additional defendant Plaintiff's immediate supervisor at the University, Kevin Wyatt. Defendant has moved for summary judgment, seeking to dismiss this case in its entirety. Upon a searching consideration of the filings currently before the Court, the attached exhibits, the relevant case law, and the entire record herein, the Court concludes that genuine issues of material fact exist as to Plaintiff's unlawful termination claim. The Court shall therefore DENY-IN-PART Defendant's Motion for Summary Judgment, insofar as it relates to that claim. In so doing, the Court clarifies that Plaintiff's unlawful termination claim represents his sole triable claim; Plaintiff has abandoned his retaliation claim, which the Court shall dismiss, and although Plaintiff alleges that Defendant failed to reasonably accommodate his religious observance, he cannot pursue those allegations as a separate claim. Further, because the Court agrees with Defendant that Plaintiff may not pursue his unlawful termination claim against Mr. Wyatt individually, the Court shall GRANT-IN-PART Defendant's Motion for Summary Judgment to the extent it relates to Mr. Wyatt individually.

I. BACKGROUND

The Court begins its discussion of the facts by noting that this Court strictly adheres to the text of Local Civil Rule 56.1 (identical to Local Civil Rule 7(h) (formerly Rule 7.1(h)). The local rules for summary judgment "assist[] the district court to maintain docket control and to decide motions for summary judgment efficiently and effectively." Jackson v. Finnegan, Henderson, Farabow, Garret & Dunner, 101 F.3d 145, 150 (D.C. Cir. 1996). "Requiring strict compliance with the local rule is justified both by the nature of summary judgment and by the rule's purposes. . . . The procedure contemplated by the rule thus isolates the facts that the parties assert are material, distinguishes disputed from undisputed facts, and identifies the pertinent parts of the record." Id. (quoting Gardels v. CIA, 637 F.2d 770, 773 (D.C. Cir. 1980)). "[A] district court should not be obliged to sift through hundreds of pages of depositions, affidavits, and interrogatories in order to make [its] own analysis and determination of what may, or may not, be a genuine issue of material fact." Id. (quoting Twist v. Meese, 854 F.2d 1421, 1425 (D.C. Cir. 1988)).

In the instant action, the Court has already afforded Plaintiff an extra chance to comply with Local Civil Rule 56.1, guided by the "well-established practice of construing a pro se party's pleadings liberally." See United States v. Palmer, 296 F.3d 1135, 1143 (D.C. Cir. 2002) (citing Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam)). On August 21, 2007, the Court found that Plaintiff's original "Statement of Material Facts in Dispute" failed to comply with Local Civil Rules 7(h) and 56.1, as well as with this Court's October 11, 2006 and April 27, 2007 Scheduling and Procedures Orders, which specifically advise the parties that "[t]he Court strictly adheres to the dictates of Local Civil Rules 7(h) and 56.1 and may strike pleadings not in conformity with these rules." See Isse v. Am. Univ., Civil Action No. 06-1422, Orders (D.D.C. Oct. 10, 2006 and Apr. 27, (2006) (citing Burke v. Gould, 286 F.3d 513, 519 (D.C. Cir. 2002)); Isse, Order (D.D.C. Aug. 21, 2007). Alerting Plaintiff as to the purpose and requirements of the Local Civil Rules, the Court struck Plaintiff's Opposition in its entirety and gave Plaintiff another opportunity to file a compliant Statement of Material Facts in Dispute. See Isse, Order (D.D.C. Aug. 21, 2007).

Plaintiff's revised Opposition is accompanied by a paragraph-by-paragraph Reply to Defendant's Statement of Material Facts as to Which There is No Genuine Dispute ("Plaintiff's Reply Statement"), as well as a separate Statement of Material Facts in Dispute ("Plaintiff's Statement"). Plaintiff's Statement and his Statement partially comply with Local Civil Rules 7(h) and 56.1; Plaintiff supports some, but not all, of his factual assertions with specific citations to the factual record. Nevertheless, in light of the fact that Plaintiff is proceeding pro se and has already been given an opportunity to revise his statement, the Court has not attempted to solicit additional record evidence that Plaintiff has failed to provide. Rather, pursuant to Local Civil Rule 56.1, in resolving the present summary judgment motion, the Court "assumes that facts identified by the moving party in the statement of material facts are admitted, unless such a fact is controverted in the statement of genuine issues filed in opposition to the motion." LCvR 56.1; 7(h). The Court therefore treats as admitted all facts alleged by Defendant that are supported by record evidence and not specifically contradicted by Plaintiff. The Court has also considered the facts adduced by Plaintiff in his Statement, to the extent that they are supported by record evidence, and cites directly to the record, where appropriate, to provide additional information not covered in either of the parties' statements.

A. Plaintiff's Employment by the University

Plaintiff, Mohammed Isse, is a practicing Muslim and a native of Somalia. See Pl.'s Opp'n, Ex. 4 (Isse Aff. ¶¶ 1, 3). Plaintiff worked as a full-time shuttle bus driver in Defendant American University's Transportation Services Department from approximately 1990 until his termination on September 16, 2005. Def.'s Stmt. ¶ 1; Pl.'s Reply Stmt. ¶ 1. Beginning in January 1999, Plaintiff's direct supervisor was Kevin Wyatt, the University's Shuttle Operations Coordinator. Def.'s Stmt. ¶ 2; Pl.'s Reply Stmt. ¶ 2; Def.'s Ex. 3 (5/30/07 Wyatt Decl.) ¶ 2. Since August 2004, Mr. Wyatt has reported to Anthony Newman, the University's Director of Risk Management and Transportation Services. Def.'s Stmt. ¶ 2; Pl.'s Reply Stmt. ¶ 2; Def.'s Ex. 1 (5/29/07 Newman Decl.) ¶¶ 1-2. Before reporting to Mr. Newman, Mr. Wyatt reported to Thomas Leathers, who was employed in the Transportation Services Department from June 1995 until July 2004. Def.'s Stmt. ¶ 2; Pl.'s Reply Stmt. ¶ 2; Def.'s Ex. 3 (5/30/07 Wyatt Decl.) ¶ 2.

The University adheres to a progressive discipline policy, which provides "guidelines" for supervisors to follow in taking disciplinary action. Def.'s Ex. 9 (Disciplinary Policy - Revised May 2005) at 51; Def.'s Stmt. ¶ 8; Pl.'s Reply Stmt. ¶ 8. The disciplinary policy categorizes employee offenses as Level I, Level II, and Level III offenses, with Level III offenses being the most severe and usually warranting immediate dismissal. Def.'s Ex. 9 (Disciplinary Policy) at 51-53; Def.'s Stmt. ¶ 8; Pl.'s Reply Stmt. ¶ 8. Three Level II offenses generally warrant dismissal under the policy. Id. According to Mr. Newman, since becoming Director of Transportation Services, he has generally treated safety violations by shuttle drivers as Level II offenses. Def.'s Ex. 1 (5/29/07 Newman Decl.) ¶ 9.

The record only contains Plaintiff's last two performance evaluations, from 2004 and 2005, both of which were completed by Mr. Wyatt. See Def.'s Exs. 40 and 41 (Isse Perf. Evals). Although Plaintiff's 2005 evaluation notes the disciplinary warnings that Plaintiff received during that year (which are discussed in great detail below), Defendant describes each evaluation as satisfactory, and Plaintiff so described them in his Complaint. Def.'s Stmt. ¶ 4; Compl. ¶ 9.*fn1

B. Plaintiff's Complaints Regarding His Supervisors

Over the course of his employment, Plaintiff filed numerous written complaints with members of the University's Human Resources and Risk Management staffs. Def.'s Stmt. ¶ 20; Pl.'s Reply Stmt. ¶ 20. Plaintiff specifically complained about an altercation with another employee, see Def.'s Ex. 27 (9/14/98 Mem. re: Investigation of Complaint - M. Isse); inadequate pay, his evaluations, delayed payment of a bill for a drug test, and Mr. Wyatt's refusal to help Plaintiff clean his bus, see Def.'s Ex. 22 (1/30/02 Letter from M. Isse to B. Harner); perceived favoritism towards other employees, see Def.'s Ex. 23 (3/27/03 Letter from M. Isse to M. Muha); an oral warning Plaintiff received for an unplanned absence, see Def.'s Ex. 28 (4/5/05 Letter from G. Karmiol to M. Isse) and Def.'s Ex. 29 (2/1/05 Letter from Plaintiff's attorney to K. Wyatt); and a written warning Plaintiff received for leaving his bus during a shift, see Def.'s Ex. 28 (4/5/05 Letter from G. Karmiol to M. Isse) and Def.'s Ex. 30 (2/3/05 Letter from Plaintiff's attorney to K. Wyatt).

In two of those written complaints, Plaintiff made general references to feeling discriminated against on the basis of his religion and national origin. See Def.'s Ex. 22 (1/30/02 Letter from M. Isse to B. Harner) ("I feel that I am being discriminated against perhaps because I am an immigrant. I am also sensitive to the religious factor, as I am a Muslim."); Def.'s Ex. 23 (3/27/03 Letter from M. Isse to M. Muha) (I reported in January what I felt was discrimination on the basis of national origin and religion at my workplace. . . I feel that discrimination and psychological harassment persists."). Plaintiff did not, however, describe any specific incidents that bear an obvious connection to his religion or national origin. Def.'s Exs. 22 and 23. In particular, Plaintiff's 2002 and 2003 letters did not include complaints about either an alleged refusal by Mr. Wyatt to accommodate Plaintiff's request to schedule his lunch breaks on Fridays so that he could attend Muslim prayer sessions, or about allegedly anti-Muslim/anti-Somalian comments made by Mr. Wyatt. Def.'s Stmt. ¶ 19;*fn2 Def.'s Exs. 22 and 23. Nevertheless, as discussed below, it is clear that Plaintiff alleges as much at this point in time.

1. Friday Prayer Sessions

According to Plaintiff, "[o]n many occasions, on a regular basis during my employment at American University, defendant Kevin Wyatt refused to allow me to attend Friday Muslim prayers." Pl.'s Stmt ¶ 1; Pl.'s Ex. 4 (Isse Aff.) ¶ 1. Although Plaintiff's evidence in support of this allegation is somewhat muddled, it is clear that a factual dispute exists as to whether Mr. Wyatt, in fact, acceded to Plaintiff's request for a religious accommodation.

Plaintiff supports his assertion with the affidavit of Ron Crowder, a former part-time bus driver at the University, who states that "Mr. Wyatt discriminated against Mr. Isse because of his religion; he did not let him pray all the time," Pl.'s Ex. 1 (8/13/07 Crowder Aff.) ¶ 6, as well as the affidavit of Will Spencer, who worked in the same building as the Transportation Services Department, and states that he "observed discrimination against Mr. Isse on a regular basis. Mr. Isse's prayer times were on Friday, and he was either denied the right to pray and/or he was not given enough time to do so," Pl.'s Ex. 2 (8/14/07 Spencer Aff.) ¶ 3.*fn3 Plaintiff does not proffer any evidence of how frequently he was unable to attend Friday prayer sessions, and his deposition testimony on this subject is highly inconsistent. See Def.'s Ex. 26 (Isse Dep.) at 42:18-22 ("I missed them at least, at least 20 times" in four months); 43:1-10 ("like, 10 times" in 2004); 43:11-21 ("In 2003, I missed them a lot of times . . . Monthly, I missed like three times or two times."); 45:17-18 ("At least monthly I missed four, three times, two times, or one time.").

Plaintiff's testimony is also inconsistent as to when he first encountered difficulty attending Friday prayers. Id. at 29:5-7; 31:1-19 ("Since Thomas Leathers came into the Department, [in 1995,] I have a difficult time."); 31:10-15 (indicating difficulty attending prayers in 2002 but not 2001); 241:10-242:14 (indicating difficulty attending prayers from 2000 through 2005).

Despite these inconsistencies, the gist of Plaintiff's testimony is clearly that Mr. Wyatt repeatedly denied Plaintiff's requests to schedule his Friday lunch break around Muslim prayer sessions. This allegation is strongly contested in Mr. Wyatt's Declaration. According to Mr. Wyatt, soon after becoming Shuttle Operations Coordinator, he "became aware that Mr. Isse was a practicing Muslim and wanted to continue to attend Friday prayer sessions . . . between 1:10 and 2:10 each Friday." Def.'s Ex. 3 (5/30/07 Wyatt Decl.) ¶ 4. Mr. Wyatt further avers:

I acknowledged Mr. Isse's request, told him I would accommodate it, and planned Friday lunch schedules so that Mr. Isse's lunch break would correspond with Friday prayer sessions. This accommodation required rearranging the regular schedule to allow Mr. Isse to take his lunch break outside of the normal lunch break period [which runs from 9:30 a.m. to 12:50 p.m. and includes staggered breaks based upon the driver's assigned route]. This accommodation was well known to the other drivers within the department since Mr. Isse was the only driver whose lunch break was at the same time and not dependent upon the assigned route.

Id. ¶¶ 3, 5. Mr. Wyatt continues to state, "[o]ver roughly the six year period that I supervised Mr. Isse, I am aware of only one Friday prayer session which Mr. Isse could not attend because I could not accommodate his schedule." Id. ¶ 6. Mr. Wyatt asserts that Plaintiff never complained to him about not being able to attend Friday prayers and that he only remembers Plaintiff being upset when he could not attend the one Friday prayer session due to a scheduling difficulty. Id. ¶ 7. Finally, Mr. Wyatt avers that he did not learn of Plaintiff's complaints regarding Friday prayers until Plaintiff appealed his termination in September 2005. Id. Other than Mr. Wyatt's Declaration, Defendant does not proffer any evidence of how frequently Plaintiff was able to attend Friday prayer sessions. Instead Defendant focus on Plaintiff's admission that he was able to attend Friday prayers at times. See Def.'s Stmt. ¶ 3. Notwithstanding this undisputed fact, there is a genuine dispute as to how frequently Plaintiff was able to attend Friday prayers, and how willingly Mr. Wyatt accommodated Plaintiff's request to schedule his Friday lunch break around prayer sessions.

2. Allegations of Anti-Muslim and Anti-Somalian Comments

There is also a clear factual dispute as to whether Mr. Wyatt and his former supervisor, Mr. Leathers, made various comments that Plaintiff describes as anti-Muslim or anti-Somalian. For his part, Mr. Wyatt avers, "I am aware that Mr. Isse claims that . . . I and Mr. Thomas Leathers made comments derogatory to Muslims. I did not say any of the things attributed to me by Mr. Isse, nor have I made other comments derogatory to Muslims." Def.'s Ex. 3 (5/30/07 Wyatt Decl.) ¶ 17. In contrast, Plaintiff proffers his own affidavit, in which he avers that "Defendant Kevin Wyatt said things to me like I should change my name after September 11th, asking why we Muslims do that in reference to bombings in Iraq, . . . mentioned terrorism and directed those comments to me and others." Pl.'s Ex. 4 (Isse Aff.) ¶ 2.*fn4

According to Plaintiff, the "comments about my religion and where I am from (Somalia) by Defendant Wyatt became worse after [September 11, 2001]." Id. ¶ 3.*fn5 During his deposition, Plaintiff also testified that Mr. Wyatt and Mr. Leathers made various comments, including "you're a nice guy, but you've got to change your name, man. Terrorists, they're look[ing] for Mohamed or Ahmed or something like that," and "change your name otherwise you're going back to your country."

Def.'s Ex. 26 (Isse Dep.) at 78:9-81:15. According to Plaintiff, Mr. Wyatt and Mr. Leathers told him that Somalia was on a list of countries associated with terrorism, and asked Plaintiff "What's wrong with you people?" "when something happen in, like, Iraq or anything." Id. at 81:20-84:5. While the record is far from clear as to precisely what comments Plaintiff alleges Mr. Wyatt made and when, it is obvious that a factual dispute exists as to whether Mr. Wyatt made comments that could be perceived as anti-Muslim or anti-Somalian.

C. Events Leading to Plaintiff's September 2005 Termination

Significant factual disputes also abound with respect to the events leading up to the termination of Plaintiff's employment with the University in September 2005. Plaintiff's termination was precipitated by complaints regarding Plaintiff's "reckless driving from university staff members," which led to two disciplinary warnings. See Def.'s Ex. 17 (9/16/05 Term. Letter). Plaintiff denies being involved in the incidents for which he received the two disciplinary warnings, and disputes key facts regarding the third incident. The Court addresses each in turn.

1. April 8, 2005 Warning

At various staff meetings in late 2004 and early 2005--and in particular on March 1, 2005--Mr. Newman and Mr. Wyatt instructed all shuttle drivers that it is unsafe and against University policy to let passengers off of the bus where there is no designated shuttle stop. Def.'s Stmt. ¶ 6; Def.'s Ex. 1 (5/29/07 Newman Decl.) ¶ 4; Def.'s Ex. 3 (5/30/07 Wyatt Decl.) ¶ 8; Def.'s Ex. 6 (5/30/07 N. Porter Decl.) ¶ 2; Def.'s Ex. 7 (5/30/07 E. Weddle Decl.) ¶ 2. Plaintiff does not dispute being present when such warnings were given. See Pl.'s Reply Stmt. ¶ 6.

On April 4, 2005, Tanisha Jagoe, the University's Director of Business Compliance, reported to Mr. Newman that while riding on a shuttle bus driven by Plaintiff that morning she observed Plaintiff allowing two passengers to disembark while the bus was stopped at traffic lights where there were no designated shuttle stops. Def.'s Stmt. ¶ 5; Def.'s Ex. 4 (5/29/07 Jagoe Decl.) ¶¶ 2-5; Def.'s Ex. 5 (4/4/05 e-mail from T. Jagoe to A. Newman). Defendant proffers Ms. Jagoe's Declaration, in which she avers that she has been a regular rider of the University's shuttle buses since August 2004, that she was riding the 11:10 shuttle between the University's Main Campus and the Tenleytown Metro stop (the "Metro 1 bus") on April 4, 2005,*fn6 and that she "recognized the driver of the . . . shuttle bus [in question] as Mohammed Isse. I was familiar with Mr. Isse because I had often ridden on shuttle buses operated by him." Def.'s Ex. 4 (Jagoe Decl.) ¶¶ 2-4. Defendant also proffers Ms. Jagoe's April 4, 2005 e-mail to Mr. Newman reporting the incident, in which Ms. Jagoe states, "I believe Mohammed was driving," and refers to "Mohammed" letting passengers off. Def.'s Ex. 5 (4/4/05 e-mail from T. Jagoe to A. Newman).*fn7

After receiving Ms. Jagoe's e-mail, Mr. Newman spoke with Mr. Wyatt, who reported to Mr. Newman that he checked his records and confirmed that Plaintiff was the scheduled relief driver on the Metro 1 bus that Ms. Jagoe reported riding when she observed the unauthorized stops. Def.'s Stmt. ¶ 5; Def.'s Ex. 1 (Newman Decl.) ¶ 7; Def.'s Ex. 3 (Wyatt Decl.) ¶ 12.*fn8 Mr. Newman then "instructed Mr. Wyatt to draft a disciplinary memorandum for 'a Level II documented oral warning' for willful violations of safety rules." Def.'s Ex. 1 (Newman Decl.) ¶ 9; Def.'s Ex. 3 (Wyatt Decl.) ¶ 13; Def.'s Stmt. ¶ 7. After consulting with the University Human Resources department, Mr. Newman advised Mr. Wyatt to issue the disciplinary memorandum to Plaintiff. Def.'s Ex. 1 (Newman Decl.) ¶ 9; Def.'s Ex. 3 (Wyatt Decl.) ¶ 13; Def.'s Stmt. ¶ 7. The disciplinary memorandum, dated April 8, 2005, is entitled "AU Staff Policy Level II Violation: Willful Violation of Safety Rules," describes Ms. Jagoe's account of the April 4, 2005 incident, and states that "[a]ny future violations will result in further disciplinary actions including termination." Def.'s Ex. 8 (4/8/05 Mem. from K. Wyatt to M. Isse).*fn9

Plaintiff maintains that he "never dropped off passengers at unauthorized stops," Pl.'s Reply Stmt. ¶ 5, and during his deposition testified that he was driving a law school route bus--rather than the Metro 1 bus--on April 4, 2005. Def.'s Ex. 26 (Isse Dep.) at 121:8-122:2. As such, there is a clear factual dispute between Mr. Wyatt's contention that Plaintiff was the scheduled relief driver for the Metro 1 bus, see Def.'s Ex. 3 (Wyatt Decl.) ¶ 12, and Plaintiff's assertion that he was not driving the bus in question. The Court notes that Defendant has not ...


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