An Arab-American Muslim woman from Morocco alleges that she suffered years of ethnic and religious harassment by the company’s Chief Financial Officer, and was then fired 75 minutes after complaining about it. The fourth Circuit reverses summary judgment on her Title VII and § 1981 complaint, in a blockbuster, 46-page opinion that straightens out several wrong turns that district courts take when ruling on dispositive motions.
Guessous v. Fairview Property Investments, No. 15-1055 (4th Cir. July 6, 2016): Guessous was a bookkeeping assistant for a real estate office from February 2007 until March 2013. From October 2008 on, she was supervised by a Cfor named Washenko. Allegedly, Washenko directed a barrage of insults at her: “Middle Easterners … are a bunch of crooks”; “not all Muslims are terrorists, but most are”; “[what’s up with Egypt and why are the Muslims killing people?”; “they are just a bunch of camel people.”
According to Guessous, Washenko often expressed or feigned ignorance of her nationality, asking her to translate Farsi (not her native language) and challenging her to explain current events in the Middle East (not her place of origin). Reportedly, Washenko once challenged her religious beliefs directly, arguing that Christians and Muslims “do not believe in the same God!” and storming off before she could respond.
Some of the alleged harassment was not expressly targeted at ethnicity or religion. for instance, “Washenko engaged in an extended prank, telling staff members over the course of two weeks that Guessous had tried to poison him.” She also complained of Washenko’s “intrusive and overbearing approach to managing her as his subordinate employee,” stalking and criticizing her at every turn.
By 2012, the ethnic and religious harassment supposedly ebbed, but Washenko began to needle Guessous about taking maternity leave, and removed her duties when she returned.
In December 2012, Guessous complained to Washenko, both about the past harassment and current lack of work. Then:
“Approximately seventy-five minutes after that conversation ended, Mary Alexander, Fairview’s president, sent two emails to other employers not associated with Fairview. The subject lines of the emails read ‘Hiring?’ and Alexander asked whether either of these employers had any openings for ‘a wonderful girl that works for me that we simply do not have enough work for right now.'”
There months later, Washenko terminated Guessous. “There is a dispute about whether Washenko initially cited a change in Fairview’s financial situation or a lack of work for Guessous’ position.” She was not replaced.
Guessous alleged that she was subjected to harassment, discriminatory discharge, and retaliation in violation of Title VII and § 1981. The district court granted summary judgment on various grounds: that the harassment allegedly was not severe, that one harassment claim was untimely, and that Guessous failed to present a genuine dispute that the reasons given for her termination were pretextual.
The fourth Circuit reverses. The opinion (by Judge Roger Gregory) corrects and clarifies a number of common errors made by district courts in deciding discrimination cases.
1. The court notes that to establish liability in retaliation cases under Univ. of Texas Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517 (2013), “a cause need not work in isolation to be a but-for cause” (citing Burrage v. United States, 134 S. Ct. 881, 888 (2014) (“Thus, if poison is administered to a man debilitated by multiple diseases, it is a but-for cause of his death even if those diseases played a part in his demise, so long as, without the incremental effect of the poison, he would have lived.”)).
2. The court analyzes the Title VII and § 1981 retaliation claims in tandem. plaintiff alleged that she was fired 75 minutes after complaining to Washenko about discrimination. The employer offered lack of work as its reason. The opinion reminds us that is not necessary on summary judgment for the plaintiff to “squarely rebut” this explanation, but simply to “demonstrat[e] a genuine dispute of material fact on the question of pretext sufficient to make [the employer’s] proffered justification a triable issue.”
3. The district court erred in holding that the employer’s proffered reason was conclusively established by its failure to replace Guessous. While plaintiff’s job might not have been “an absolute necessity,” nevertheless a “reasonable jury could easily conclude, however, that the termination decision was made only seventy-five minutes after Guessous’ complained to Washenko about past comments and treatment, and that it was Therefore motivated by the complaint itself.” Were the suspicious timing not enough, the employer presented no record evidence to support its claim: “no emails, no meeting minutes, no performance reviews, nothing.”
4. On her claims that she was discriminated against – by reassigning her work and firing her – on the bases of race, religion, national origin and pregnancy, the district court erred by holding that the plaintiff could not make out her case because – once again – she wasn’t replaced. The panel notes, first, that a modified version of the standard McDonnell Douglas test applied to this case:
“Because [employer] Fairview claims it terminated Guessous because it lacked enough work for a full-time bookkeeping position, this case is closer to a reduction-in-force case, where unnecessary positions are eliminated, than it is to a typical discharge case. Accordingly, adapting the final prima facie requirement to the facts of this case means that Guessous was required to show that her job duties were absorbed by employees not in the protected class or otherwise show that Fairview did not treat Guessous’ protected characteristics neutrally when deciding to terminate her.”
Because her duties were absorbed by non-Arab, non-Muslim coworkers, this element was satisfied.
5. Moreover, the employee was not necessarily required to present addition al, independent evidence of discrimination. The absence of admissible evidence by the employer supporting its alleged legitimate, non-discriminatory reason was quite enough, and this was augmented by evidence that other employees, equally un-busy, got to keep their jobs without explanation. Finally, a jury could consider the many disparaging things that Washenko, the decision maker, said about Arabs and Muslims.
6. On the harassment claims, the district court erred that “discrete” events such as termination “cannot comprise part of a hostile work environment claim” for timing purposes. The panel noted the recent Supreme Court decision, Green v. Brennan, 136 S. Ct. 1769 (2016), involved just such facts, a harassment claim culminating in constructive discharge.
“So long as the act is part of the pattern of discriminatory treatment against the employee, then that act should be sufficient for purposes of the continuing-violation doctrine, even if the act would otherwise qualify as a discrete act that is independently actionable …. As such, the district court’s conclusion that neither the withdrawal of work from Guessous nor her termination were facts that could support her Title VII hostile work environment claim was erroneous.”
7. The panel holds, in an issue of first impression for the circuit, that the Morgan continuing-violation framework applied equally to harassment under § 1981.
8. The district court also erred by applying “an overly cramped view of what constitutes race-based conduct,” when it held that only the “camel people” remark was racial, ignoring the many other comments about the plaintiff’s Arab ethnicity.
“The district court put itself in the place of the jury when it decided that only one of the remarks was racial. The court said the remaining comments ‘were references to and questions about Islam and Moroccan culture,’ but a jury might well decide they were also motivated by broader ethnic animus …. After all, Washenko regularly interchanged his harassment of Guessous, referring to Muslims, Moroccans, Palestinians, Egyptians, Middle Easterners, and North Africans.”
9. Finally, the panel holds that There was a genuine dispute of material fact about whether the harassment was severe or pervasive. Along with the heavy volume of comments, There was also the heightened scrutiny of her work, that made Guessous feel like a criminal. “The evidence suggests Washenko thought Guessous was untrustworthy-and intended to make that clear to her-from the moment she disclosed her origins to him at their initial meeting. A jury would certainly be entitled to reach that conclusion.”