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Tarick Ali, By His Personal Representative, Monica Ali v. District of Columbia Government

August 31, 2011

TARICK ALI, BY HIS PERSONAL REPRESENTATIVE, MONICA ALI, PLAINTIFF,
v.
DISTRICT OF COLUMBIA GOVERNMENT, DEFENDANT.



The opinion of the court was delivered by: Henry H. Kennedy, Jr. United States District Judge

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,*fn1 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.

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.*fn2 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.*fn3

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 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 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 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 ...


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