UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
August 31, 2011
TARICK ALI, BY HIS PERSONAL REPRESENTATIVE, MONICA ALI, PLAINTIFF,
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.
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 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.
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.
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 non-movant "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 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 (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)).*fn4
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 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.*fn5 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.*fn6 The District argues that neither claim can survive summary 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.*fn7 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 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.*fn8
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 Brown, 199 F.3d at 457--58).*fn9 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.*fn10
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).*fn11 And, although the threat 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.*fn12 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.*fn13 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 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.
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.").*fn14
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 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 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 fiance 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 fiance 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 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 fiance. 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.*fn15
And finally, the causal 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
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.