TARICK ALI, by h is personal repre sentative, M ONICA ALI,

P laintif f,

v. DISTRICT OF COLUMBIA GOVERN MENT, Defendan t.

UNITED STAT ES DIS TRICT COURT F OR THE DIS TRICT OF COLUM BIA

Civil Action 08-01950 (HHK )

MEMORAN DUM OP INION AND ORDER Taric k Ali was employ ed by the District of Columbia in its Fire and E merg ency Medica l Service s Depa

rtment (“the Depa

rtment”). B y

his personal re prese ntative, Monica A li, he bring s 1 this action ag ainst the District alleg ing that the District violated Title VI Iof the Civil Ri g hts Act of 1964, 42 U.S.C. § 2000e et seq, by discriminating a g ainst him on the basis of his relig ion and reta liating a g ainst him for opposing that discrimination. Bef ore the Court is the District’s motion for summary

judgme nt [ #44], which argues that Ali did not ex perie nce a ny adver se ac tion that could support a Title VI Iclaim. Upon conside ration of the motion, the opposition thereto, the

rec ord of this ca se, and or al ar g ument of counse l, the Court concludes that the motion mus t be g rante d in part and de nied in part.

Taric k Ali is decea sed. F or the sake of simplicity , the Court will refe r to Tar ick 1 Ali as if he we re the plaintiff in this case. See A li v. D.C. Gov’t , 697 F. Supp. 2d 88, 89 n.1 (D.D.C. 2010).I. BACKG ROUND

At all times releva

nt to this action, Ali was a firef ighte r and e merg ency

medical technicia n in the employ

of the De partment. Ali wa s also a pra cticingMuslim; in acc ordanc e with the dictates of his fa ith, he prayed five times eac h day . Ali’s claims ag ainst the District arise from two alter cations betwe en him and his commandingoffice r, L ieutenant Micha el Malinowski, during the summer of 2006. A. The Jun e 15, 2006 Dr ill an d Li neup On J une 15, 2006, Ali’s eng ine company was sche duled for a

“phy sical we llness assessment” a

nd training exercise. Pl.’s Opp’n Ex. 26 (“Hutc hinson Mem.”) a t 1. At the schedule d time, Malinowski called for the company

to assemble at the tr

uck. Ali and f

ellow firef ighte r Mar cus Craigdid not appear . Malinowski then rangthe fire house bell, af ter whic h Ali and Craigappea

red. Malinowski ang rily demande d an explanation; they responde d that they 2

wer e pra ying. Ma linowski then ordere d Ali and Craigto prepa re spe cial re ports explaining their slow response time. Hutc hinson Mem. at 1; Pl.’s Opp’n Ex . 5 (“Ma linowski Dep.”) a t 30. 3 After the drill, Malinowski met with Craig, who complained that Ma linowski did not treat Bla ck and Muslim firef

ighte rs as we ll as he treated other f irefig hters, and a

rgued that Malinowski’s order

to prepa re a specia l report wa s unfair. Cra ig D ecl. ¶ 7. Malinowski told Craigthat the drill incident could be r esolved infor mally and that Craig

did not need to produc e a specia l report. He then said that “Cra ig must make a choic e betwe en his job and his relig ion

Acc ording to Craig , he and A li responded “ within seconds” of hear ing the bell 2 sound. See Pl.’s Opp’n Ex. 6 (“Craig Dec l.”) ¶ 4.

A “spe cial re port” is “a

n officia l communication to the depar tment or a membe r 3 of the de partment.” Malinowski Dep. at 30. 2when at work, for if the re ligious ac tiviti es continued to interf ere with his duti es it could have a neg ative impact on his job perf ormanc e.” H utchinson Mem. at 1. At the time of these events, Craigwas subjec t to a “last cha nce a g ree ment,” i.e. , he wa s eff ectively on probation and c ould be subject to termination for e ven a minor de partmenta l infrac tion. See Pl.’s Opp’n Ex. 4 (“Dove Dep.” ) at 41; Hutchinson Mem. at 1 & n.2; see also U.S. De p’t of Air Force v . FLRA , 949 F.2d 475, 478 (D.C. Cir. 1991) (de scribinglast chanc e agree ments g ener ally ). Craig ’s last cha

nce ag ree ment did not, however , come up dur ing his c onversation with Malinowski. C raigDec l. ¶ 9. Malinowski then had roug hly the same c onversation with Ali, t elling him that he ne ed not prepa re a specia l report, see Hutchinson Mem. at 1–2, and sug g esting that he nee ded to dec ide which wa s more important, his job or his relig ion. See Pl.’s Opp’n Ex. 12 (“MeetingTr.”) at 7. B. The Jun e 27, 2006 Sign-In O rder The sec ond incident under ly ing A li’s claims occur red on June 27. Malinowski had previously

been or dere d by

his superior, Te rry

Rey nolds, to enforc e a r equire ment that all firef ighte rs “sig n in and out for g ear , relief , appar atus, etc.” Hutchinson Mem. at 2; see Pl.’s Opp’n Exs. 8, 9 (emails from Rey nolds to Malinowski and other offic ers r eminding the m to “[m] ake sur e that the journa l is done per the or ders” ). A c heck of the journal that Ali’s e ng ine company was supposed to sig n reve aled to Malinowski that Ali had fa iled to do so; accor dingly , Malinowski ordere d Ali to beg in signingthe journal. B eca use others, inc luding Ma linowski himself, had pre viously

failed to sig n the journal, Ali believe d that he had be en unfa irly single d out. He thus draf

ted a spe cial re port that descr ibed the June 15 drill incident and the J une 27 sign- in order a s examples of hara ssing be havior by Malinowski. See Pl.’s Opp’n Ex. 10 (“J une

327 Ali Report”). Ma linowski forwar ded the r eport to his superiors a nd reque sted an investigation. Hutchinson Mem. at 2. C. The Jul y 5, 2006 Mee ting and Mediation On J uly 5, Ali and Malinowski met with Battalion Chi ef Stephe n Dove r eg arding their dispute. Ali complained that Malinowski’s re mark that Ali nee ded to choose betwee n his job and his relig ion was “out of line.” MeetingTr. at 5. Ma linowski acknowledg ed makingthe

rema rk but asser

ted that he wa s responsible for the per formanc e of his subordinate s, which, he

aver red, ma de the c omment appropriate under the circ umstances. Me eting Tr. at 7, 20. Malinowski and Dove both sug g ested that if Ali pursue d his complaint, other member s of the fire company , including Ma

rcus Cra ig, w ould need to be disc iplined for fa iling to sig n the journals. MeetingTr. at 11–13. Ali prote sted: “say [i ng ] . . . i f I push it on, . . . every

body else is g oing to g et in trouble . . . that’s like a form of e x tortion.” MeetingTr. at 15. Dove responde d that he was “ just letti ng [Ali ] know the ramifications of” sendingthe re port up the cha in of command. MeetingTr. at 15. The meetingconclude d with Dove orde ring“fr esh re ports” fr om Malinowski and other members of

the fire company

as to why

firef ighte rs wer e not sig ning the journals. MeetingTr. at 24; seePl.’s Opp’n Ex. 23 (“Dove Repor t”) a t 1–2. Ali’s special re port was then forwa rded to De puty

Chief J ames Ta lbert, see Hutchinson Mem. at 3; Dove Re port at 2, and the other membe rs of Ali’s e ng ine company wer e summoned to a line-up a nd order ed to “do spe cial repor ts beca use of . . . Ali’s c omplaint.” CraigDec l. ¶ 11. Shortly afte r the mee ting c oncluded, Dove reque sted that Malinowski and Ali attempt to resolve the ir dispute via mediation. They ag ree d, and met with L ieutenant Edg ar J. Hoover that afte rnoon. At Hoove r’s prompting , Ali stated that an a pology from Malinowski would settle the

4matter. Af ter a short discussion betwee n Malinowski and Ali, Malinowski apolog ized and the two shook hands. See Pl.’s Opp’n Ex. 25 (“Hoover Re port”) at 1. At Talbert’ s reque st, relayed via Dove, both men the n prepa red state ments saying that their “private disag ree ment” had be en settled. See Pl.’s Opp’n Ex. 11; Dove Repor t at 2. Upon re ceivingthese stateme nts, Talbert withdrew A li’s special re port. Acc ordingto Hutchinson, Ali later explained that he ha d ag ree d to withdraw his re port “be cause he had no de sire to have Craigdisciplined and per haps terminate d.” Hutchinson Mem. at 3. D. Hutchin son’s EE O Investigation an d Recom m endations I n the wee ks following the ir mediation, Malinowski and Ali appe are d to work comforta bly toge ther. In late September , howeve r, Ali raise d Malinowski’s job-or-r elig ion

rema rk with Detria

Hutchinson, the De partment’s D iversity /EEO Prog ram Mana g er. A fter a n investigation, Hutchinson concluded that some “cor rec tive action” a g ainst Malinowski was “imperative,” and r ecommende d that he enr oll in two courses throug h the District’s Center for Workforce Deve lopment, on his own tim e and w ithout overtime pay . Hutchinson Mem. at 4. She also found that Dove ’s J uly 5 statement that Ali’s pursuit of his repor t would require Dove to addre ss alleg ations ag ainst other fire fig hters to be “ unacc eptable” and an “ interfe renc e [with] Ali’s EEO rig hts.” Hutchinson Mem. at 4. She ther efor e “c ite[d] ” Dove for inter fer ing w ith Ali’s rig ht to participate e ffe ctively in the EEO proc ess, and r ecommende d that Dove e nroll in Workforce Deve lopment courses a nd be disciplined appr opriately . Finally , Hutchinson

rec ommended that Ta lbert enr oll in a Workforce Deve lopment course be cause he had too r eadily dropped the investigation into Ali ’s re port. See Hutchinson Mem. at 4.

5II. LEGAL STANDARD

A motion for summary

judgme nt should be g rante d only “if the mova

nt shows that there is no ge nuine dispute as to any materia l fac t and the movant is entitled to judgme nt as a matter of law.” F E D . R. C I V . P. 56(a). A material fa ct is one that “mig ht affe ct the outcome of the suit under the g overninglaw.” Anderson v. Liberty Lobby, I nc. , 477 U.S. 242, 248 (1986). The movant must support it s fac tual positions by “citingto particular

parts of materials in the re cord, including de positions, documents, electronica lly stored information, affidavits or de clar ations, stipulations . . . , admis sions, interrog atory answe rs, or other

materia ls.” F E D . R. C I V . P. 56(c) (1)( A); see Celotex

Corp. v. Catrett , 477 U.S. 317, 323 (1986). I f the moving party

meets its burden, the non- moving pa rty must then establish that a g enuine dispute a s to any materia l fac t actually

exis ts. See M

atsushita El ec. I

ndus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586 (1986). To mee t its burden, the non-moving party must show that “the e vidence is such that a re asonable jury could re turn a ve rdict” in its favor

. Anderson , 477 U.S. at 248. Such evidenc e must consist of more than me re unsuppor ted alleg ations or denials and must set for

th specific f

acts showingthat there is a g enuine dispute for trial. See F E D . R. C I V . P. 56(c)( 1), (e ); Celotex , 477 U.S. at 322 n.3. I f the e vidence is “mere ly colora ble” or “not sig nificantly

probative,” summary

judgme nt may

be g rante d. Anderson , 477 U.S. at 249–50.

6III. ANALYSIS

A. Evid ence P roperly Before t he Court Rule 56 allows a par

ty seekingor opposing summary judgme nt to “object that the materia l cited to support or dispute a f act c annot be pr esente d in a form that would be admissible in evidence .” F E D . R. C I V . P. 56(c)( 2). The D istrict objects that many of the e x hibits t hat Ali prese nts in opposing the District’s summary judgme nt motion consti tute or conta in inadmissibl e hear say . The District doe s not ex plain the basis for its objec tion to any specific exhibi ts, merely listi ng those that it finds problematic. The District’s ar g ument is larg ely unavailing

. To beg in with, the District overlooks two doctrina l disti nctions that are important here

. The fir st is the differe nce be tween e vidence that is admissibl e at tria l and evidenc e that the Court may consider at summary

judgme nt. At summary

judgme nt, material will be disre g arde d only if it “cannot be prese nted in a for m that would be admissible in evidence ” at tria l. F E D . R. C I V . P. 56(c) (2). Thus, to def

eat summary

judgme nt, a nonmovant “is not requir ed to produc e evide nce in a form that would be admissible at trial,” so longas her evidenc e is “c apable of being

conve rted into admissible evidence .” Catrett v. Johns-Manv ille Sales Corp ., 826 F.2d 33, 38 (D.C. Cir. 1987) (e mphasis added) ; see G leklen v . Democ ratic Congr. Campaign Comm., Inc

. , 199 F.3d 1365, 1369 ( D.C. Cir. 2000). Consequently , the District is wrongto assert that the Court may

not consider Ali’s e x hibits i f they “ca nnot be introduce d at trial in this f ormat .” See Def .’s Reply at 3 (e mphasis added)

. The District’s se cond over sight re lates to the def inition of hearsa

y itself. Hea

rsay is an out-of-c ourt statement that is “off ere d in evidence to prove the truth of the matter a sserted.” F E D . R. E V I D . 801(c) . The District’s blunde rbuss objection to Ali’s exhibi ts overlooks the fa ct that

7many

of them ar e not “of

fer ed . . . to prove the truth of the matter asser ted.” See 2 M C C O R M I C K
O N E V I D . § 249 (6th ed. 2009) ( “I f [a] st atement is not an a ssertion or is not offe red to prove the fac ts asserted, it is not hear say .”). When these distinctions are a pplied to Ali’s exhi bits, it is clear that the majority

would be admissible at trial for at least some purpose, a nd that others ar e “c apable of beingconver ted into admissible evidence ” such tha t the Court may

consider the m now. Catrett , 826 F.2d at 38. First, many of Ali’s exhibit s are not offer ed to prove the fa cts asser ted there in. See Pl.’s Opp’n Exs . 8 (ema il from Rey

nolds ordering

Malinowski and others to have office rs sig n journals), 9 (sa me), 11 (Ali repor

t stating that his private dispute with Malinowski had been r esolved infor mally), 13–22 (fire company

journal entrie s). These materia ls are of fer ed to show that ce rtain statements

wer e made or to establish the ef fec t of those statements on their r ecipients, a nd thus are not hear say . See 2 M C C O R M I C K O N E V I D . § 249. L ikewise, Dove ’s spec ial repor t, which desc ribes Ali’s complaint and the e vents of Jul y 5, is not hearsa

y beca use it is an admission by

a par ty opponent. SeeF E D . R. E V I D . 801(d)( 2)(D) ; Talavera v. Shah , 638 F.3d 303, 309–10 ( D.C. Cir. 2011) (in employ

ment case s, statements by officia ls who were responsible for or involved in the challeng ed ac tions are pa rty admissions under Rule 801(d)( 2)). Fur ther, the r ecor d of the July 5 meetingbetwee n Ali, Dove, and Ma linowski — although hear say in its present form — is obviously “ca pable of beingconver

ted into admissible evidenc e.” Catrett , 826 F.2d at 38. The re cord is mer ely a wr itten transcr iption of an audio tape that rec orded the conver sation at the mee ting. See MeetingTr. at 27. B eca use the District off

ers no basis for the Court to conc lude that the audio tape itself would not be admissible at trial, the transcr ipt may

be conside red f

or the purpose s of summary judgme nt. See Catrett , 826 F.2d a t 38
8(allowingthe use of a letter at summary

judgme nt beca

use “e ven if the . . . le tter itself would not be admissible at trial, [its proponent] has g one on to indicate that the substance of the letter is reduc ible to admissible evidence in the form of tria l testimony ”). Finally , the memora

ndum written by

Detria Hutchinson, descr ibing the e ntire cour se of events fr om the J une 15 drill incident throug h Hutchinson’s investig ation of Ali’s complaints in September, is hea

rsay but is neverthele ss admissible under Rule 803(8)( C)’s exception for investigative repor

ts. See A llen v. Chi. Transi t Auth. , 317 F.3d 696, 700 ( 7th Cir. 2003) (holding that finding s by

investigators from the de fenda nt-ag ency ’s af

firmative a ction unit were “admissible . . . as a

n investigative repor

t of a public a g ency” in a Title VI Isuit); cf. Chandler v. Roudebush , 425 U.S. 840, 863 n.39 (1976) (“ Prior administrative finding s made with re spect to an employ

ment discrimination claim may , of cour se, be a dmitted as evidenc e at a fede ral-se ctor trial de novo.” (citing F E D . R. E V I D . 803(8)( C)). 4 The District is cor

rec t, however , that some of Ali’s exhibits contain inadmissible or incompetent mater ial. First, and most cr ucially , the entire specia l report that Ali dra fted on June 27 descr ibing his intera ctions with Malinowski is hearsay . The re port is plainly offe red to prove the eve nts describe d there in, and, bec ause A li is decea sed, is not “ca pable of beingconver

ted into Rule 803(8)(C) a llows for the a dmission of publi c re cords or repor ts, in any form, 4 containing“fa ctual finding s resulting from an inve stigation made pursuant to author ity g rante d by law, unless the sourc es of infor mation or other c ircumstance s indicate lac k of trustworthiness.” F E D . R. E V I D . 803(8)( C). Be cause the District has made no attempt to show that “the sourc es of infor

mation or other c ircumstance s” surroundingthe memora ndum “indicate lack of trustworthiness,” the Court will not disreg ard it at this time. See I n re Korean Air Lines Disaster of Sept. 1, 1983 , 932 F.2d 1475, 1482 ( D.C. Cir. 1991) (“Rule 803( 8)(C) a ssumes admissibili ty

in the first instance. . . .” )(quotingF E D . R. E V I D . 803 advisory committee note); Id

. (“The burden is on the pa rty disputing admissibilit y

to prove the f

actua l finding to be untrustworthy .”) ( quoting United States v. Am. Tel. &Tel. Co. , 498 F. Supp. 353, 364 (D.D .C. 1980)). 9admissible evidence ” in the for m of trial testimony

. Glekle n , 199 F.3d at 1369; see F E D . R. C I V . P. 56(c)( 2). Second, be cause Ali’s complaint and the District’ s answer are unverifie d, they

are “ac corde d no evidentiar

y weig ht in deciding [t he District’s] summary judgme nt motion.” Gallucci v. Sc haffer , 507 F. Supp. 2d 85, 92 (D.D .C. 2007). Finally , certain otherwiseadmissible exhi bits contain some hear say statements. See, e .g. , Hoover Report at 1 (r epeating Ali’s descr iption of Malinowski’s job-or-re ligion comment) ; Dove Report at 1 (same) . Although the Court will not, of course, r ely on such statements, the D istrict is wrongto sugg est that the Court may

not consider these documents simply beca use they contain some inadmissible materia l; the hear say

rule e x cludes stateme nts, not documents. See F E D . R. E V I D . 801–802. 5 Havingresolved the District’s evidentiar y arguments, the Court now turns to the merits of Ali’s claims. B. Ali’s Discrim ination and Retaliation Claims Ali bring s two Title VI Iclaims ag ainst the District: he alleg es that the De partment discriminated ag ainst him on the basis of his relig ion, and that it retaliate d ag ainst him for objectingto that discrimination. The District a rgues that neither

claim ca n survive summary 6 Finally , the Court makes no use of some of the doc uments to which the District 5 objects, and thus does not a ddress their a dmissibi lity

. See Pl.’s Opp’n Exs . 27 (Smith Mem.), 28 (He rlihy Mem.). The “ J urisdiction and Venue ” sec tion of Ali’s amende d complaint states that the 6 Court has jurisdiction over Ali’s suit not only under Title VI Iof the Civil Ri g hts Act of 1964, but also under the Civil Rights Act of 1991, 42 U.S.C. § 1981a, and the D.C. Human Rig hts Act, D.C. Code § 2-1401.01 et seq . See Am. Compl. ¶ 2. The portion of the c omplaint that sets out Ali’s claims, howeve r, make s no mention of these other provisions, and Ali’s opposition to t he District’s summary

judgme nt motion refer s only to Title VI I . Acc ording ly , the Court does not understand A li to raise claims under these other

provisions. Further , § 1981a does not c reate a cause of ac tion, but rather pr ovides for da mag es in ce rtain discrimination ca ses. See 42 U.S.C. § 1981a(a )(1)

. 10judgme nt beca use Ali has fa iled to establish that he experienc ed an a dverse action within the meaningof Title VI I . Be cause the adve rse a ction require ment operates diffe rently in discrimination and re taliation case s, the Court will address ea ch cla im separately

. 1. Discrim ination on the Basis of Religion Title VI Imakes it unlawful f or an e mploy er “ to discriminate ag ainst any individual with respe ct to his compensation, terms, conditions, or privileg es of e mploy ment, beca

use of suc h individual’s . . . relig ion.” 42 U.S.C.A. § 2000e-2( a)( 1). At the summary judgme nt stag e, Title VI Idiscrimination claims are analy zed using the bur den-shiftingframework of McD onnell Douglas Corp. v. Green , 411 U.S. 792 (1973), which f irst require s the plaintiff to establish a prima fa cie c ase of

discrimination. Id . at 802. To do so, a plaintiff must show that: (i) she is a 7 member of

a prote cted c lass; (ii) she suffe red a n adver se employ

ment action; and ( iii) the unfavor able a ction g ives rise to an infe renc e of discr imination. Georgev. Leavitt , 407 F.3d 405, 412 (D.C. Cir. 2005) (c iting Stella v. Mineta , 284 F.3d 135, 145 ( D.C. Cir. 2002)). The D istrict seeks summary

judgme nt on Ali’s discrimination claim on the sole g round that he is unable to establish a prima f

acie case beca

use he c annot show that he suf fer ed an a dverse employ

ment action. I n Title VI Idiscrimination case s, an adve rse e mploy ment action is “a

signific ant cha

ng e in employ ment status, such as hiring , firing , failing to promote, rea ssignment with sig nificantly

The D.C. Circuit has e x plained that “where an employee ha s suffer ed an a dverse 7 employ ment action and a

n employ er ha s asserte d a leg itimate, non-discriminatory rea son for the decision,” the district court should set aside the bur den-shiftingframework a nd move direc tly

to the ultimate issue of discrimination. Brady v. O ffice of Sergeant at Arms , 520 F.3d 490, 494 (D.C. Cir. 2008). He re, how ever , the District disputes that Ali has in fac t suffer ed an a dverse employ ment action; thus, the McD onnell Douglas structure still g overns. 11differ ent re sponsibili ties, or a de cision causingsignific ant cha ng e in bene fits.” Taylor v. Small , 350 F.3d 1286, 1293 ( D.C. Cir. 2003) (quoting Burlington Indus., Inc. v. Ellerth , 524 U.S. 742, 761 (1998)) (interna l quotation marks omitted). Put another way , a discrimination plaintiff alleg ing a dverse action must have e x perie nced “ materia lly adver se conse quence s aff ectingthe terms, conditions, or privileg es of e mploy ment or future employ

ment opportunities such that a

rea sonable trier

of fa ct could find objec tively tang ible harm.” Forkkio v . Powell , 306 F.3d 1127, 1131 (D.C. Cir. 2002) (c iting Brown v. Brody , 199 F.3d 446, 457 ( D.C. Cir. 1999)). Her e, Ali identifies a r aft of e vents that, he avers, c onstitut e adve rse a ction: Malinowski’s job-or-r elig ion comment to Ali; Ali’s meeting with Dove and Malinowski; the subsequent mediation with Hoover; Dove and Malinowski’s thre at to discipline Marc us Craig , which could have c aused Cra ig’ s termination; and Dove’ s threat to re quire the f ire c ompany

to prepa re spe cial repor ts reg ardingtheir fa ilure to sign the journals. SeePl.’s Opp’n at 24. None of these e vents, howeve r, constitutes adve rse a ction for the pur poses of a Title VI Idiscrimination claim. 8 As explained above, a

findingof adve rse a ction require s “objec tively tang ible harm.” Forkkio , 306 F.3d at 1131. Ali identifies no such harm that r esulted fr om Malinowski’s job-orrelig ion comment. Malinowski was ce rtainly criticizing Ali’s pe rfor

mance (in a pa

rticularly insensitive fashion), but cr iticism from a supervisor that does not aff ect a subordinate’ s employ ment status or opportunities is not adverse a ction. See Taylor , 350 F.3d at 1293 (citing Ali also identifies two other ostensibly adver se ac tions: being “ forc ed” to c hang e 8 the title of (and “ strong ly encour ag ed” to c hang e the wor ding of ) his J une 27 spec ial repor t, and “beingorder ed to pre pare a spec ial repor t for alleg edly

not signingthe journal whe re othe rs had not done so.” Pl.’s Opp’n at 24. These e vents, howeve r, ar e both desc ribed only in Ali’s report itself, see J une 27 Ali Report at 1, whic h is pure hea rsay and inca pable of conver sion into admissible evidence

. See supra section I I I .A. Moreove r, there is no indication that either had any tang ible conseque nces f

or Ali. 12Brown , 199 F.3d at 457–58). L ikewise, Ali identifies no c onsequenc es for “the ter ms, 9 conditions, or privileg es of [his] employ ment,” Forkkio , 306 F.3d a t 1131, that stemmed from his J uly 5 meetingwith Dove and Ma linowski or from the mediation with Hoover later tha t day

. 1 0 Dove a nd Malinowski’s threats to discipli ne Craigand re quire the othe r member s of the fire c ompany

to write spec ial repor

ts present a

closer que stion, but st ill do not rise to the level of adver se ac tion. Malinowski threatene d to “cha rg e” Cra ig if

Ali pursued his complaint, Meeting Tr. at 12, whic h, as a r esult of Craig ’s last cha nce a g ree ment, appar ently amounted to a thre at to fire him. See Dove De p. at 41. Howe ver, the re is no indication that this threat wa s ever car ried out, and “mer e thre ats . . . do not rise to the leve l of an a dverse employ ment action bec ause the y result in no materia lly

adver se conse quence s or objectively tang ible harm.” Valles-Hall v. Ctr. For Nonprofit

Advanc eme nt , 481 F. Supp. 2d 118, 144 (D.D .C. 2007); accord Lutke witt e v. Gonzales , 436 F.3d 248, 271 ( D.C. Cir. 2006) (B rown, J., concurring ); Cromwell v. W ash. Metro. Area Transit Auth. , 2006 WL 2568009, at * 7 (D.D .C. Sept. 5, 2006). And, althoug h the threat 1 1 Ali also fails to link the job-or-re ligion re mark to any other putatively

adver se 9 action. His ca se is thus differe nt from those whe re a n officia l responsible for

a cha lleng ed employ ment action has ma de a disc riminatory rema rk (whic h can sug g est that the ac tion was motivated to some deg ree by discriminatory

animus). In such ca ses, it is the challeng ed employ ment decision, not the comment itself, that satisfies the adver se ac tion requireme nt. See, e.g. , Prater v. Fe dEx Corp. Servs., I nc. , 2009 WL 1725978, at *6–7 (D.D .C. J une 18, 2009) (“[A] sufficient nexus between discr iminatory statements and an adverseemploym ent action can cre ate a n infere nce of

discrimination.” (e mphasis added) ). The possibility

that Ali’s prese nce a

t the meetingand mediation may have be en 1 0 mandatory , see Pl.’s Opp’n at 24, is irrele vant without some indication of tang ible employ ment conseque nces. F urther, A li’s char acte rization of the meetingand mediation as “ forc ed” a ppear s to be without support in the rec ord.

The Court notes that this Court and others in this district have attributed the 1 1 lang uag e “me re thre ats . . . do not rise to the leve l of an a dverse employ ment action bec ause the y result in no materia lly

adver se conse quence s or objectively tang ible harm” to the D.C. Circuit’s 13to order the other membe rs of the e ng ine company to write spec ial repor

ts was car ried out, see CraigDec l. ¶ 11, there is no sugg estion in the rec ord that Craigor any of Ali’s collea gues experience d any

tang ible employ

ment conseque nces a s a re sult. Thus, even le avingaside the 1 2 fac t that these threats were not directe d at Ali himself, no rea sonable juror could conc lude that they constituted adver se ac tion. Nor c an these events c ombine to cre ate a hostile work environme nt. A work 1 3 environment, e ven if objec tionable, does not bec ome ac tionable unless the off ensive c onduct “per meate[s] [ the workpla ce] with discriminatory intimi dation, ridicule, a

nd insult t hat is sufficie ntly

sever e or pe rvasive to a lter the c onditions of the victim’s employ ment and cr eate an abusive wor

king e nvironment.” Oncale v . Sundowner Offshore Servs., I nc ., 523 U.S. 75, 81 (1998) ( quoting Harris v. Forklift Sys., Inc. , 510 U.S. 17, 21 (1993) (inter nal quotation marks omitted). A plaintiff “must demonstrate that the alleg ed eve nts leading to the hostile work environment we re c onnecte d, since ‘disc rete acts c onstitut ing disc rimination or reta liation claims

. . . are differ ent in kind from a hostile work e nvironment claim that must be base d on sever e and

opinion in Forkkio , 306 F.3d at 1131. As noted above , howeve r, this lang uag e ac tually orig inated in the district cour t opinion in Valles-Hall , 481 F. Supp. 2d at 144. As noted above , the only

information in the re cord on the nature of “spe cial 1 2 repor ts” sug g ests that they

are not inherently

disciplinary

or punitive, and c an ser

ve to communicate a

ny ty pe of infor

mation. See supra note 3. Acc ording ly , beingrequire d to draft one ca nnot, at least on this rec ord, constitute adve rse a ction. Cf. T aylor v. Solis , 571 F.3d 1313, 1321 (D.C. Cir. 2009) (r equiringan employ ee to submit repor ts on the status of her w ork did not constitute materially

adver se ac tion for re taliation purposes). Although, at the hear ing he ld before the Court, the District contende d that Ali’s 1 3 amende d complaint does not prese nt a “hostile work e nvironment” c laim, those words do appe ar in the complaint. See Am. Compl. ¶ 32. Thus, although Ali’s opposition fails to make a ny argument on this point , the Court briefly addre sses the issue her e. 14perva sive discriminatory intimi dation 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 i n orig inal). He re, A li merely asser ts that eac h of the e vents that he a lleg es

wer e discriminatory

also contributed to a hostile wor k environment; but a plaintiff “ cannot so easily bootstrap discriminatory claims into a hostile work environme nt claim.” Nurriddi n v. Goldin , 382 F. Supp. 2d 79, 108 (D.D .C. 2005) (citing Lester , 290 F. Supp. 2d at 33). A li makes no eff ort to show that these e vents collec tively cre ated a n abusive wor

king e nvironment sever e or perva sive enoug h to alter the c onditions of his employ ment. See O ncale , 523 U.S. at 81. Thus, his discrimination claim cannot proc eed unde r either a discre te disparate impact theor y or a hostile work environme nt theory , and summary judgme nt for the District on this claim is require d. 2. Ret aliation f

or Opposi ng Religious Discrim ination I n addition to banning disc rimination, Title VI I also prohibits an employ er f rom reta liating a g ainst an employ ee “ beca use he ha s opposed any

prac tice made an unlawf ul employ ment prac tice by

[Tit le VI I ], or because he has ma de a c harg e, testified, a ssisted, or participated in any

manner in an investig ation, proce eding , or hea ring under” Title VI I . 42 U.S.C. § 2000e-3(a ). To esta blish a prima fa cie c ase of reta liation, a plaintiff must show that: (i) she eng ag ed in protec ted ac tivity ; (ii) she suffe red a materia lly

adver se ac tion by

her e mploy er; and (iii) a c ausal c onnection existed betwee n the two. W iley v. G lassman , 511 F.3d 151, 155 (D.C. Cir. 2007) (c iting Brown , 199 F.3d at 452). As above , the District cha lleng es Ali’s prima fac ie ca se on the sole g round that he did not suffe r a judicia lly cognizable adver se ac tion.

15The scope of the a dverse action re quirement is broa der in re taliation case s than in

discrimination case s. See B urlington N . & Santa Fe Ry. Co. v . W hite , 548 U.S. 53, 63–64 (2006). A re taliation plaintiff may preva il by

showing materially adver se ac tion, which is “not limi ted to discriminatory

actions that af

fec t the terms and c onditions of employ ment,” id. at 64, but rathe r

rea ches a ny conduct that “ well might have dissuaded a rea sonable wor

ker f rom making or supporting a

char g e of discr imination.” Id . at 68 (quoting Rochon v . Gonzales , 438 F.3d 1211, 1213 (D.C. Cir. 2006)) ( internal quotation marks omitted); see Baloc h v. Kempthorne , 550 F.3d 1191, 1198 n.4 (D.C. Cir. 2008). Whether a ny g iven ac t would have that e ffe ct “will often depend upon the particula r circ umstances. Context m atters.” Burlington , 548 U.S. at 69. Significa ntly , while unre alized threats ca nnot constitute adverse action in discrimination case s, they can be mater ially

adver se for

reta liation purposes. See G aujacq v. ED F, Inc. , 601 F.3d 565, 578 (D.C. Cir. 2010) ( “ A threatening verba l statement, standing alone, mig ht well constitute a materia lly

adver se ac tion.”). 1 4 Her e, Ali identifies as materially adver se the same rang e of a ctions that he asse rts wer e adver se for

the purposes of

his discrimination claim. See Pl.’s Opp’n at 24. And he re, a s there, most do not rise to the level of adve rse a ction, even unde r the broa der de finition employ ed in reta liation cases. One action, howe ver, c lear s the bar of materia l adver sity : Dove and The Court ag ree s with Ali that the District appea rs to have c onfused the two 1 4 adver se ac tion standards. The D istrict relies on Raymond v . U.S. Capitol Poli ce B d. , 157 F. Supp. 2d 50 (D.D .C. 2001), for the pr oposition t hat althoug h “an e mploy ee ne ed not be f ired, demoted or tra

nsfer red to make out a ca se of r etaliation,” she must show “a tang ible chang e in responsibilities or workingconditions that constitutes a material e mploy ment disadvantag e.” Id

. at 56 (quoting Gary v . W

ash. Metro. Area Transit. Auth. , 886 F. Supp. 78, 90 (D.D .C. 1995)) (interna l quotation marks omitted). Raymond, howeve r, pre dates both the D.C. Circuit’s rec og nition of the differ ence in scope be tween the two standards, see Roc hon , 438 F.3d a t 1217– 18, and the Supre me Court’s ratification of that conc lusion in Burlington , 548 U.S. at 68. 16Malinowski’s threat to discipli ne, and likely terminate, A li’s core ligionar y and close friend Marc us Craig

. At the J uly

5 meeting , Dove a sserted that if Ali pursued his complaint ag ainst Malinowski, an investig ation into the conduct of A li’s fellow fire fig hters would re sult. See MeetingTr. at 11–12. Ma linowski then said: I would have to char g e Marc us. . . . and I don’t have any choice s. I ’ve g ot to send a repor t up explaining that people wer en’t doing their jobs. And I was seeing it. And it forc es me to investiga

te, and it forc es me to make people do their repor ts, and then that forc es me to cha

rg e them. MeetingTr. at 12–13. Ali prote sted: “you say . . . if Ipush on, y ou know, eve ry body else is g oing to g et in trouble. I

mean, that’ s like a for

m of extortion.” Meeting Tr. at 15. Dove responde d: “No it isn’t. I f y ou want to send this thing through, I ’ll send it throug h. I ’m just letting you know the ra

mifications of it.” Mee ting Tr . at 15. Afte r the mee ting e nded, the members of

Ali’s company

wer e told during a lineup that they would have to dr aft spec ial repor ts “bec ause of

Fire fig hter Ali’s c omplaint.” CraigDec l. ¶ 11. At the time of the mee ting, a ll three men pr esent we re a war e that Craigwas subjec t to a last chanc e agree ment, under which any disciplinary

infrac tion could lead to his termination. As Dove put it during his deposition, “Marcus w ould have ha d the most to lose from any thing like [t he fire depar

tment taking a ction ag ainst Ali’s company members] . . . . I

mean, a nd that was [Ali ’s] best friend.” D ove De p. at 41. Indeed, A li later told Hutchinson that “he w ithdrew his . . . specia l report be cause he had no de sire to have Craigdisciplined and per haps terminate d.” Hutchinson Mem. at 3. On these fac ts, a rea sonable juror could ea sily

conclude that Dove a

nd

17Malinowski’s rema rks wer e intended, a

nd understood, as a

serious threat to fire Craig if Ali pursued his complaint. A cr edible thre at of ter

mination might well dissuade a rea sonable e mploy ee f

rom pursuing a cha

rg e of discr imination. See B urlington , 548 U.S. at 73 (“Area sonable e mploy ee fac ing the choice betwee n reta ining he r job (and pa y chec k) and f

iling a disc rimination complaint might we ll choose the for mer.” ); EEOC v. CreativeNetworks, LL C , 2009 WL 597214, at *6 (D. Ar iz. M ar. 9, 2009) (“[T]hreats of ter mination . . . [ direc ted at the plaintiff a re] rea sonably likely to deter othe rs from e ng ag ing in pr otected a ctivity .”); Rhodes v. Napolitano , 656 F. Supp. 2d 174, 185–86 (D.D.C. 2009) ( holding that a fruitless misconduct investig ation that culminated in a letter thre ateningthe plaintiff with discipline up to and including termination was mate rially adver se); cf. Gaujacq , 601 F.3d at 578 (stating that verba l threats ca n constitute materially adver se ac tion, but holdi ng that the deter rent e ffe ct of the te rmination threat a lleg ed by the plaintiff was unde rmined by its contex t). Moreove r, a r etaliatory

action nee d not be direc ted at the pa rty who eng ag ed in the protec ted conduc t that prompted it in order to be materially adver se. The Supre me Court rec ently held that Title VI Iwas violated when an e mploy ee’ s fiancé was fir ed in re taliation for the employ ee’ s protecte d activity

. See Thompson v . N. Am. Stainless, LP , —U.S.—, 131 S. C t. 863, 868 (2011) ( “We think it obvious that a re asonable worke r mig ht be dissuaded f rom eng ag ing in protec ted ac tivity

if she knew

that her f iancé would be fire d.”); see also De Medina v . Reinhardt , 444 F. Supp. 573, 580 (D.D .C. 1978) (re asoning that “[s] ince toler ance of third-pa rty repr isals would, no less than the tolera nce of direc t reprisa ls, deter pe rsons from e x erc ising their pr otected

18rig hts under Title VI I ,” Title VI I ’s anti-re taliation provisions must nece ssarily rea ch mater ially adver se ac tions aimed at third parties)

. Ba sed on the for eg oing — a nd particula

rly on the Supreme Court’s opinion in Thompson — the Court conclude s that Ali has established a g enuine dispute of f act a s to whether he experience d materia lly

adver se ac tion. To be sure, the re a re f actua l differ ence s betwee n this case and Thompson : Craig was thre atene d with termination rather than ac tually

fired, a nd he wa s Ali’s “best fr iend,” not his fianc é. Dove Dep. at 41. I t is thus unclear pre cisely wher e this case falls on the continuum betwee n “firinga close family member,” which “w ill almost alway s meet the Burlington standard,” and “inf licting a milder repr isal on a mere acqua intance,” which “w ill almost never do so.” Thompson , 131 S. Ct . at 868. Even so, to stave off summary judgme nt, Ali need only show that a re asonable juror could c onclude that the thr eat “ well might have ‘dissuaded

a re asonable worke r fr om making or supporting a

char g e of discr imination.’” Burlington , 548 U.S. at 68 (quoting Rochon , 438 F.3d at 1213) (empha sis added); see Fallon v. P otter , 277 F. App’x 422, 429 n.29 (5th Ci r. 2008) ( stating that, under Burlington , whether an ac tion is materia lly

adver se “is a f

act issue f or the jury”). This burde n is “not onerous.” Tex. De p’t of Cmty. Affairs v. Burdine , 450 U.S. 248, 253 (1981). Common sense sug g ests, and DeM edina and Thompson support the conc lusion that, a rea sonable wor ker w ould be deter

red f rom pursuing a discrimination complaint by a cr edible thre at to fire a close fr iend. And finally , the ca usal 1 5

This conclusion is further bolstered by

Hutchinson’s dete rmination that Dove’s 1 5 asser tion that Ali’s complaint “would require Dove to addr ess the alleg ations made a g ainst other members [of the eng ine company] i s unacc eptable a nd is an . . . interferencewith Fir efighter Ali’s rights t o effective ly participate in the EEO proce ss .” Hutchinson Mem. at 4 (emphasis added) ; cf. Allen , 317 F.3d a t 700 (holding that the district court er red by disreg ardingthe conclusions of a g ency

aff irmative ac tion investigators r eg ardingan ag ency decisionmake r’s motivation for taking challeng ed employ ment action). 19connec tion between the threat and Ali’s protec ted ac tivity is obvious: Dove and Malinowski’s

rema rks duringthe meetingexpressly tied the threatened c onsequenc es for Craigand the other firef ighte rs to Ali’s pursuit of his discrimination complaint (which the District doe s not dispute was prote cted a ctivity

under Title VI I ). Consequently , summary judgme nt for the District on Ali’s reta liation claim is not warra nted. 1 6

IV. CONCLUSION For the fore g oing r easons, it is this 31 day of August, 2011, hereby st ORDERED that defe ndant’s motion for summary judgme nt [ #44] i s here by GR ANTED as to plaintiff’s c laim of relig ious discrimination and DENIED as to plaintiff’s c laim of reta liation.

Henr y H. Kenne dy , J r. United States District J udg e

As with his discrimination claim, however , Ali has provided no support f or the 1 6 proposition that the Depar tment’s alleg edly

reta liatory

actions combined to c reate a hostile work environment; ac cording ly , Ali’s reta liation claim may proce ed only

under the theory

that Ali experience d a discre te, mater ially adver se re taliatory

action. See Nurriddin , 382 F. Supp. 2d at 108. 20