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Albakri v. Sheriff of Orange County

United States District Court, M.D. Florida, Orlando Division

March 31, 2017




         This matter is before the Court, without a hearing, on the Motion for Summary Judgement (Doc. 20) filed by the Defendant, Orange County Sheriff Jerry L. Demings in his official capacity; the Amended Response in Opposition (Doc. 27) filed by the Plaintiff Waleed Albakri; and Defendant's Reply thereto (Doc. 28).

         I. Background

         Albakri is a Sunni Muslim who holds dual citizenship in Jordan and the United States. Albakri began working for Defendant as a deputy sheriff in March 2008, and worked as a patrol officer until October 2010, when he transferred to Defendant's narcotics unit. At the time, the narcotics unit was comprised of approximately twenty-five to thirty deputies divided into three squads. Albakri was assigned to “Squad 3” for the duration of his time in the narcotics unit, and it was this assignment that marked the beginning of the alleged harassment he endured.

         A. The Alleged Harassment

         Upon joining the narcotics unit, Albakri began training with Officer Michael Mandarano.[1](Doc. 20-1 at 17.) During training, Mandarano would announce to the squad that he could barely understand Albakri and made statements such as “I don't understand you. Speak English, ” or that Albakri “shouldn't even be a cop.” (Id.) Mandarano would also ask if Albakri was going to go pray when he would leave the room. Albakri told Mandarano to “knock it off” and to leave him alone, but he never reported the treatment to his supervisors citing fear of retaliation and becoming an outsider. (Id. at 17-18.) Eventually, after it became apparent that Mandarano was not treating him fairly in training evaluations, Albakri requested a new training officer and was moved. No further alleged harassment occurred throughout the remainder of training, though, this respite was short-lived. (Id. at 18.)

         A month and a half after training concluded, tension began to rise between Albakri and Sergeant Batie, Squad 3's supervising officer. Albakri and other officers reported Batie to the acting lieutenant questioning his law enforcement tactics and recounting Batie's failure to answer phone calls. (Id. at 18-19.) These reports led to Batie's reprimand at a squad meeting. After the meeting, Batie singled out Albakri calling him a rat. (Id. at 19.) A few months later, the animosity escalated when the squad started performing prostitution stings.

         Apparently, prostitution stings are rather difficult to perform, but Albakri was adept. (Doc. 20-1 at 19.) Albakri would “pick up” four or five prostitutes, both male and female, in the course of an hour. (Id.) During these operations, Albakri would often make statements related to his sexual activity in an attempt to show the target that he was a homosexual. Recognizing Albakri's skill, Batie began harassing him with statements like, “Man, you're killing it. You are a faggot because you know how to pick up those dudes and those girls.” (Id.) Albakri asked Batie to “knock it off” and that homosexuality was “not taken lightly in [his] faith, ” but from that point on Batie would often refer to Albakri as “faggot, gay, [or] fag.” (Doc. 20-1 at 19; Doc. 24-1 ¶ 12.)

         This harassment would often occur in front of the rest of Squad 3 and sometimes in public. (Doc. 24-2 at 45.) In one instance, when Albakri, Batie, and another officer were at a restaurant, Batie and the other officer told their waitress that Albakri “was a fag, ” and, after Albakri objected, Batie continued saying, “no . . . he is gay . . . he likes guys . . . [and] he's a fag.” (Doc. 24-2 at 6.) After the waitress left the table, Albakri told Batie that he was not gay and asked why Batie called him such derogatory terms in front of the waitress. Batie replied “stop crying about it.” (Id.) In another instance, at a human trafficking conference, Batie called Albakri a “fag and a loser” in front of other law enforcement professionals. (Id. at 5.) Albakri objected to the name-calling and Batie responded, “Shut up fag . . . you're nothing but a whining cry baby.” (Id.)

         In addition to the homosexual-related comments, Albakri also suffered harassing comments related to his wife and sister-in-law. In October 2011, Batie and another officer went to Albakri's home to check on him after surgery. (Doc. 20-9 at 5-6.) After meeting Albakri's wife and sister-in-law he mentioned that they “were beautiful” and asked if Albakri's sister-in-law was dating anyone. Albakri responded, “No, she's not dating anybody . . . she's still young, you know, we're Arabs. We don't just date, we get married. She's a virgin.” (Doc. 20-10 at 20-21.)

         From that point on, Batie made comments, often in front of other squad members, suggesting that he wanted to have sex with Albakri's sister-in-law by giving her his “big snake.” (Id. at 21.) Batie would also tell Albakri that he just left Albakri's wife and suggest that Albakri should ask “for the condom [he] left next to [Albakri's] bed” or “about [Batie's] snake.” (Id.) At one point, when other squad members were laughing at Batie's antics, Albakri warned, “you guys think it's funny but it's not. You guys don't know, that we are very strict people. We don't just talk about these things.” (Id. at 22.)

         In addition to the homosexual slurs and sexual comments about his wife and sister-in-law, some comments directly related to Albakri's race or religion. (Doc. 24-2 at 27.) Besides the comments made by Mandarano discussed above, Albakri was called “terrorist, ” “seven eleven, ” “Haji, ” and was called “sand nigger” at least once. (Doc. 20-1 at 55.) He was told he “would never be an American;” that “people like” Albakri could go right through security at an airport, whereas “an American” would be searched; and that Albakri's baby was likely on the “no-fly list.” (Id.; Doc 24-4 at 7.) And one final example, on Ramadan, Batie asked Albakri why he was isolating himself. Albakri responded that “in [his] religion, from sunrise to sunset, we cannot eat, drink or participate in anything, ” to which Batie responded, “You cannot fast on my watch” and ordered Albakri to give his assigned vehicle away. (Doc. 20-1 at 30.)

         Much of this harassment occurred throughout Albakri's time with Squad three. (Doc. 24-1 ¶ 13.) Albakri states that he was offended and degraded by the comments and that he would sometimes cry on his way home from work. (Doc. 20-1 at 52, 59.) On one occasion, he was so distraught that his wife felt the need to call a close friend to their home to comfort him. (Id. at 61.) There is also evidence that Albakri sought mental-health counseling and was prescribed an antidepressant. (Id. at 52.)

         While much of the harassment targeted Albakri, there is also evidence that Albakri made similar, offensive comments to his colleagues. For example, Albakri once said to Batie “a fag would know a fag, if you think I'm a fag, so you have to be a fag because you always say I have fag radar so you must have that same radar.” (Doc. 20-8 at 36.) Albakri also changed the screensaver on another officer's computer to a “gay flag.” (Id. at 28-29.) Additionally, Albakri would joke about his ethnicity and religion: he tolerated, if not accepted, the nickname “Kaboom” and walked around the office clicking a pen like a bomb detonator (Doc. 20-1 at 40), and he often ululated, mimicking an Arabic war-cry (Doc. 20-5 at 14).[2] Albakri has also made inappropriate racial comments about his colleagues, once referring to an African American colleague's children as “little monkeys.”[3] (Doc. 20-7 at 3-4.)

         B. Reporting the Harassment

         Eventually, Batie recognized that Albakri was being bullied by other members of the squad and brought it to the attention to his superior, Captain Mark Pillington, in February or March of 2012. (Doc. 24-4 at 17.) Captain Pillington's response was that if Albakri processed more cases, the squad would leave him alone. (Id.) In August of 2012, Albakri verbally reported the harassment to Lieutenant Bruce McMullen, his division commander at the time. (Doc. 20-1 at 30.) During the meeting, Albakri broke down crying. (Id.) Lieutenant McMullen advised that Albakri take his complaint to Defendant's Office of Professional Standards, and Albakri filed his official complaint with that office on August 24, 2012. (Doc. 20-2 at 8.) Two of the individuals identified in his complaint were Batie and Deputy Cristian Readdy. (Id.)

         Within a week of the complaint, Defendant moved Batie from Squad 3 to work in evidence and moved Readdy, to records. (Doc. 20-1 at 31.) The investigation into Batie concluded on February 8, 2013, finding that there was no unlawful discrimination, but the complaint was sustained for failing to maintain a competent level of supervision over his squad by actively participating and encouraging inappropriate conduct. (Doc. 24-2 at 48.) Batie was initially suspended and demoted, but the demotion was reversed on administrative appeal. (Doc. 20-17 at 8-9.)

         The investigation into Readdy concluded on March 5, 2013, and the complaint was not sustained for any policy violation. (Doc. 20-2 at 120.) Specifically, the investigation found that on one occasion Readdy made a comment about checking Albakri for bombs, but the comment was isolated. The report concluded that Albakri participated in much of the same inappropriate conduct that he complained of and that there was no unlawful discrimination. (Id.)

         On July 5, 2013, Albakri filed a charge of discrimination with the United States Equal Employment Opportunity Commission (EEOC), alleging discrimination based on the above-described conduct. (Doc. 20-21 at 5.) On September 11, 2015, the United States Department of Justice issued notice of Albakri's right to sue on his EEOC claim (Doc. 9 ¶ 74; Doc. 11 ¶ 74), and Defendant received notice of the charges around September 17, 2013. (Doc. 20-21 at 1.)

         C. Insurance Fraud Charges, Arrest, and Termination

         Meanwhile, in May 2012, the Florida Division of Insurance Fraud (FDIF) filed a probable cause affidavit after investigating an insurance claim filed by Albakri in September 2011. (Doc. 29-1 at 86.) Allegedly, Albakri submitted fraudulent information and evidence related to a claim for a stolen computer. (Doc. 20-1 at 106.) Defendant had no knowledge of the investigation until the State of Florida issued a warrant for Albakri's arrest on October 25, 2012. Defendant received the warrant and executed it, arresting Albakri on October 26, 2012-roughly two months after Albakri filed his initial discrimination complaint.

         The day after his arrest, Albakri was suspended without pay pending the conclusion of the criminal investigation against him. This suspension is standard practice. (Doc. 20-1 at 26-27.) Additionally, Defendant opened its own administrative investigation into any misconduct Albakri could have committed related to the insurance fraud charges, but it was tolled pending the outcome of the of the State's investigation. Seven months later, in May 2013, the State of Florida dropped its charges, and Albakri was reinstated to a position on the Narcotics unit. (Id. at 101.) Soon after, Defendant began its administrative investigation anew, and Albakri was transferred to non-enforcement duties pending its outcome.

         On December 23, 2013, Defendant's investigative report was issued finding that Albakri submitted a fraudulent insurance receipt and finding that Albakri violated Defendant's policies. The specific provision, called “Conformance to Laws, ” provides that “Personnel will comply with the laws, ordinances, rules and Constitution of the United States, the State of Florida, or any of their subdivisions.” (Id. at 123.) Albakri was issued a Notice of Intent to Discipline on December 30, 2013, which advised him that Defendant intended to terminate his employment. (Doc. 20-3 at 23.)

         Albakri requested an administrative appeal, but, while his request was pending, the State of Florida refiled its criminal charges against him. After he was arrested for the second time, Albakri elected for pre-trial diversion and the State ceased prosecution. (Doc. 20-2 at 1-5.) Albakri's administrative appeal hearing was held on March 21, 2014. After reviewing the investigative report and hearing Albakri's testimony, the presiding officer found that Albakri's appeal was without merit. (Doc 20-3 at 25.) The next two levels of appeal ended with the same result. (Id. at 28-36.) Albakri was terminated effective April 1, 2014. (Id. at 36.)

         D. ...

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