Failure To Cooperate With City’s Accommodation Efforts Dooms Firefighter’s Religious Discrimination Claim

Delmont Waqia has a controversial history with the Oakland, California Fire Department. In 1993, when he was a lieutenant, Waqia was accused of sexually harassing a firefighter. Several other women firefighters came forward and corroborated the victim’s claims. Waqia was demoted as a result of the incident.

The City re-promoted Waqia in 1995, announcing it would accommodate three female firefighters who did not want to work with Waqia. In the event that Waqia was assigned to a station where any of the women worked, the women were not required to work with him, and they could transfer to a different station.

The situation came to a head early in 2002, when Waqia was assigned to the station of one of the firefighters who had corroborated the sexual harassment claims. When asked whether he was willing to transfer, Waqia responded by filing a workers’ compensation claim due to an “adjustment disorder” that left him “feeling dejected and like an outcast.” Waqia subsequently filed a complaint alleging he had been the victim of gender discrimination and a hostile work environment.

Several months later, in July 2002, Waqia was arrested on a charge of committing a lewd act upon a child. Though the charges were eventually dismissed, there was considerable public outcry regarding Waqia, including negative comments by local newspapers. There was also dissension in the Department regarding the prospects of Waqia’s return to duty from administrative leave.

On November 20, 2002, the Department and Waqia met to discuss his return to work. Waqia, a Muslim, told the Department he was making a religious trip to Mecca on November 29. Waqia explained that the pilgrimage he was making was an Umra, which can take place at any time during the year. The Department suggested that Waqia could trade shifts with other firefighters to accommodate his planned trip.

Waqia expressed concern about the negative press regarding his arrest and suggested that retirement might be the best solution for all concerned. One of the assistant chiefs at the meeting agreed that Waqia or his attorney would meet with someone from the City Attorney’s office to discuss the matter further.

Eventually, without reaching any agreement with the City, and without attempting to trade shifts, Waqia simply stopped reporting for work, and announced that he was leaving on his religious pilgrimage. The Department fired Waqia, and he responded with a religious discrimination lawsuit.

The California Court of Appeals upheld the dismissal of Waqia’s lawsuit. The Court observed that “this case illustrates the impasse that can result from an employee’s failure to accommodate his own religious beliefs or to cooperate with the accommodation efforts of his employer. Here, a review of the record shows that the City initially tried to accommodate Waqia by offering the option of shift trades and by negotiating a retirement package. Waqia was fully aware that if the parties could not agree on his retirement package, he would be required to report for full duty.

“Although the time frame for resolving the issue of Waqia’s retirement, or alternatively his return to full duty, was arguably short, Waqia’s conduct exacerbated the time constraints. In keeping with Waqia’s request to negotiate a retirement package, the City made repeated efforts to contact his attorney. However, Waqia’s counsel did not respond to those efforts. When the City was finally able to reach Waqia’s counsel, he requested that Waqia’s return date be postponed to December 2 to allow for additional retirement negotiations. Significantly, in settling on the December 2 return date, Waqia’s counsel made no mention of any conflict between that date and Waqia’s trip.

“Waqia knew that if his return date conflicted with his trip, he could obtain shift trades or request vacation, sick time, or leave of absence. Waqia, however, failed to fulfill his correlative duty to make a good-faith attempt to explore any of these options, choosing instead not to report for work. The trial court did not err in summarily dismissing Waqia’s claim of religious discrimination.”

Waqia v. City of Oakland, 2007 WL 4183784 (Cal.App. 2007).

This article appears in the January 2008 issue