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Hasan v. Foley & Lardner LLP, No. 07-3025 (7th Cir. Dec. 15, 2008); Poulson v. Publix Super Market, No. 07-15434 (11th Cir. Dec. 15, 2008)

| Dec 14, 2008 | Daily Developments in EEO Law |

In a decision from the Seventh Circuit, a big national law firm now faces a trial on a race/religion/national origin claim by an Indian Muslim associate fired in the wake of 9/11. The Eleventh Circuit reverses summary judgment against a pro se discrimination plaintiff in an unpublished order.

Hasan v. Foley & Lardner LLP, No. 07-3025 (7th Cir. Dec. 15, 2008):  A law firm associate, of Indian heritage and a Muslim, claims that he was singled out for discharge in the wake of the 9/11 terrorist attacks.  The district court granted summary judgment, but the Seventh Circuit, applying the “direct method” of proof, finds that the employee presented a genuine issue of material fact about whether race, religion or national origin motivated his termination.

The circumstantial evidence, according to the opinion, included “[partners] Simon’s and Hagerman’s anti-Muslim comments, [department chair] Mason’s warning to [managing partner] Jaspan about Mr. Hasan’s religion, the suspicious timing of the downturn in his hours and evaluations following September 11, one partner’s testimony that Foley fired no other associates for economic reasons and did well financially in 2001 and 2002, the Business Law Department’s treatment of its other Muslim associates and Foley’s shifting justifications for firing Mr. Hasan.”

The entire opinion warrants perusal, but note in particular the panel’s timely reminder that racially-disparaging comments by putative non-decision makers (in this case, two law partners) may still be relevant:

“[D]erogatory remarks are relevant if they are made by someone who provided input into the adverse employment decision. The record shows that Simon attended the meeting at which the partners decided to fire Mr. Hasan and that he participated in that decision. That others were also involved in making that decision does not make Simon’s participation irrelevant. There is also evidence in the record that Simon’s criticisms at that meeting incited anti-Muslim and racially charged commentary from other partners. Vechiola’s description of the meeting as a ‘sand-nigger pile on’ suggests as much, as does Pfister’s comment that Simon had targeted Mr. Hasan just as he had targeted another lawyer, albeit unsuccessfully. Viewing the facts in the light most favorable to Mr. Hasan, the record would allow the rational inference that Simon not only participated in the decision to fire Mr. Hasan but also may have instigated it.” [Citations omitted]

Should we be surprised that a large law firm (and a management-side labor firm to boot) may fall prey to the same HR mistakes as the employers whom they advise as clients?  As a large law firm partner once told me, sometimes the shoemaker’s children go without shoes.

Poulson v. Publix Super Market, No. 07-15434 (11th Cir. Dec. 15, 2008):  The employer moved under Fed. R. Civ. P. 12(b)(6) to dismiss a pro se discrimination case on the ground that the charge was filed too late.  “Publix appended a number of documents to its motion to dismiss in support of its contention that Plaintiff’s claims were barred because he failed to exhaust properly administrative remedies.”  But rather than treat the motion as one for summary judgment, as required by Fed. R. Civ. P. 12(b), the magistrate

“ordered Plaintiff ‘to submit evidence to support his claim that he was terminated from employment with Defendant on April 21, 2003.’ Plaintiff was advised that a failure to comply could result in a recommendation that the case be dismissed for failure to obey the magistrate’s order and failure to prosecute the action; no reference was made to Rule 56 or other of the Federal Rules of Civil Procedure, and no notice was given that Publix’s motion to dismiss would be converted into a motion for summary judgment. Plaintiff responded timely and submitted some documents in support of his response.”

From an appeal granting the motion to dismiss, the Eleventh Circuit reverses.  It holds that the failure to follow the Rule 12(b) mandate — that “matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56” — prejudiced the substantial rights of the plaintiff. 

“[B]ecause the magistrate judge failed to explain to Plaintiff the consequences and procedure of conversion — he was not advised that even if he did comply with the magistrate’s order his claims could be dismissed on the merits — the record shows no understanding on Plaintiff’s part. Instead, Plaintiff maintains that he was unaware that he had to present all of his evidence at that time. Although the magistrate seems to have followed some of the procedural safeguards of Rule 56(c), we are unprepared to say the notice error to this pro se party was harmless.”

The only regret is that this decision goes unpublished.  The attachment of extrinsic materials to Rule 12(b)(6) motions is a popular tactic with defendants, and it would be nice to have some authority out there to fight it.

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