Case Study:
Herawi v. State of Alabama, Department of Forensic Sciences 311 F. Supp. 2d 1335 (M.D. Ala. 2004)
Herawi is an Iranian doctor whose employment was terminated. She filed a complaint against the defendant, the state Department of Forensic Sciences, alleging national origin discrimination and retaliation. The State responded that it had legitimate non-discriminatory reasons for terminating her (insubordination and poor job performance). The district court found that Herawi’s national origin discrimination claim would not be dismissed on summary judgment because her supervisor’s threat that she would report the doctor’s national origin to law enforcement made clear that her supervisor was antagonistic toward her because of her Iranian heritage, and that the timing of the doctor’s termination (three weeks after complaining about the supervisor’s behavior) suggested that the supervisor’s apparent dislike for her national origin may have infected the process of evaluating the doctor. Herawi also prevailed against summary judgment on the retaliatory discharge claim. [Herawi also claimed hostile environment but did not succeed and the discussion of that claim is not included below.]
Thompson, J.
II. Factual Background
During the relevant time period, Herawi’s supervisor in the Montgomery office [of the Alabama Department of Forensic Sciences] was Dr. Emily Ward. Herawi, like all state employees, was a probationary employee for her first six months on the job. Ward was highly critical of Herawi almost immediately upon her arrival in the Montgomery office. On her first day at work, Ward accused Herawi of being inconsiderate for not offering to help her. Ward looked at Herawi with a “hatred filled stare” and mocked her by repeating her in a high-pitched voice. On or about October 22, 2001, Ward became enraged at Herawi, shouted at her, accused her of wrongdoing, and said she had had enough of Herawi and that Herawi was the rudest person she had ever met. When Herawi tried to explain her actions, Ward yelled louder and said that she did not like Herawi and that no one else liked her either. On October 24, Herawi expressed to Craig Bailey, the office director, her concerns about the way Ward was treating her. Bailey later told Herawi that, after his conversation with her, he spoke to Ward to find out if she had a problem with people of Middle Eastern descent. Bailey told Herawi that people from the Middle East were perceived as rude and aggressive. On November 7, Ward “implied” to Herawi that she was getting calls from people asking about Herawi’s background and her accent, and she threatened to expose Herawi’s nationality to law enforcement agencies. Ward also said that she was getting calls from people asking who Herawi was, asking why she was there, and stating that she did not belong there. Herawi had two more run-ins with Ward in December 2001, after Herawi had taken time off in November to visit her mother in California after the death of her father. On December 6, Ward called Herawi into her office, where Bailey yelled at Herawi, accusing her of neglecting the office after her father died and not performing enough autopsies. Bailey also questioned Herawi about whether she was looking for a job in California. On or about December 25, Herawi confronted Ward about whether Ward had spread a rumor that Herawi was looking for a job in California. [The court outlines additional, subsequent circumstances, which it discusses later in this opinion.] On January 2, 2002, Herawi received an “employee probationary performance appraisal” and an attached narrative performance appraisal, dated November 15, 2001. The narrative performance appraisal states that Herawi “appears to be a very intelligent and dedicated Forensic Pathologist” and that she “seems to have been well trained.” The narrative appraisal, however, goes on to state that “her performance has been problematic in four interrelated areas: expectations of co-workers, recognition of and subordination to authority, incessant inquisitiveness, and lack of organization.” It also states that Herawi “comes across as very self-centered and projects an ‘entitlement complex’”; that she “has also refused to comply with departmental regulations and/or rules if she doesn’t agree with them”; and that her “work habits leave room for improvement.” The narrative was signed by Ward and Downs [J. C. Upshaw Downs, the director of the Alabama Department of Forensic Sciences and the chief medical examiner for Alabama, and others.] Herawi brought her concerns about Ward to Downs on January 4, 2002. Herawi told Downs that Ward had threatened to expose her nationality; Herawi also told Downs that she felt confused and intimidated. Downs told Herawi that Middle Eastern people were generally facing troubles in the wake of the terrorist attacks on September 11, 2001, and that Herawi should turn the other cheek. However, Downs said he would speak to Ward. On January 9, 2002, Downs wrote a letter to Thomas Flowers, the state personnel director, requesting that Herawi’s probationary period be extended by three months. Downs wrote that Herawi “requires additional training in autopsy procedures to take a more organized approach to the process” and that she “must also learn to use the chain of command.” *** Ward alluded to Herawi’s nationality again on March 7, 2002. Ward told Herawi that nobody liked her, that everybody complained about her, that she did not belong there, that should leave, and that her English was bad. After this incident, Herawi complained to Downs again, on March 21, about Ward’s hostility. At this meeting, Downs told Herawi that he would start an investigation, and Herawi told Downs that she had contacted a lawyer. Herawi also complained to Samuel Mitchell, the department chief of staff, on March 25. Events came to a head on March 28, at a meeting attended by Herawi, Ward, Bailey and Steve Christian, the department’s personnel manager. Herawi claims that she was terminated during the meeting and that when she met with Christian shortly after the meeting, he told her it was unofficial policy that terminated employees could submit a letter of resignation. Memoranda written by Ward, Bailey, and Christian present slightly different accounts. According to Ward, she informed Herawi that the situation was not working out and that the department had not seen any improvement in the areas identified in Herawi’s performance appraisal. According to Ward, before she could finish, Herawi interrupted her to say she would quit. According to Bailey, Ward requested Herawi’s resignation, and Herawi agreed. According to Christian, Ward told Herawi that an offer of permanent employment would not be forthcoming and then told Herawi to speak with him later that day. When they met, according to Christian, he told her it was the department’s unofficial policy to allow employees to resign to make it easier to look for work in the future. Herawi submitted a letter of resignation on April 1, 2002. A letter from Downs, dated April 18, confirmed Herawi’s “separation from employment” at the department effective April 19. Downs’s letter states that the reason for Herawi’s separation is that she continued “to require additional training in autopsy procedures and failure to properly use the chain of command.”
III. Analysis
Herawi claims that (1) she was terminated because of her Iranian origin; (2) she was fired in retaliation for her complaints about Ward; and (3) she was harassed because of her national origin [not addressed in this excerpt]. The Forensic Department has moved for summary judgment on the ground that its decision not to offer her a permanent position was based on legitimate, non-discriminatory reasons. The court will consider Herawi’s claims in order.
A. Termination
Applying McDonnell Douglas, this court concludes that Herawi has met her prima-facie burden of producing “evidence adequate to create an inference that [the Forensic Department’s] employment decision was based on an [illegal] discriminatory criterion.” To establish a prima-facie case of discriminatory discharge, she must show the following: (1) she is a member of a protected class; (2) she was qualified for the position at issue; (3) she was discharged despite her qualification; and (4) some additional evidence that would allow an inference of discrimination. Herawi has sufficient evidence to establish the first three elements of the prima-facie case. First, as an Iranian, she is a member of a protected class. Second, the record shows that she was qualified for her position: she is a doctor, she trained as a forensic pathologist, and she has experience in the field of forensic pathology. Third, she was terminated. The department does not dispute this much. Traditionally, to meet the fourth element of the primafacie Title VII case, a plaintiff alleging discriminatory treatment was required to show that she was replaced by someone who was not a member of her protected class or that a similarly situated employee who was not a member of the protected class engaged in nearly identical conduct and was not discharged. Herawi has neither evidence that she was replaced by someone who was not a member of her protected class nor evidence that a similarly situated department employee who was not a member of the protected class engaged in nearly identical conduct and was not discharged. The department goes further to argue that a Dr. Bristol, who is not a member of a protected class, had similar employment problems to Herawi’s and was treated similarly. Whether or not Bristol is an appropriate comparator, Herawi has offered no evidence that her place in the department was taken by a non-protected individual and no evidence of a similarly situated nonprotected department employee who was treated differently than she was. Under these circumstances, courts have frequently held that the plaintiff does not have a genuine issue of material fact fit to go to a jury. The court is mindful, however, that, as a general rule, “demonstrating a prima-facie case is not onerous; it requires only that the plaintiff establish facts adequate to permit an inference of discrimination,” and that there are ways to raise the inference of discrimination other than showing that a similarly situated individual from outside the protected class was treated differently. In this case, Ward made remarks related to Herawi’s national origin on three occasions. On November 7, 2001, Ward threatened to report Herawi’s national origin to law enforcement agencies. On January 2, 2002, Ward told Herawi that she was getting calls asking who Herawi was and why she was working there; Ward suggested that she was getting these calls because of Herawi’s accent. Finally, on March 7, 2002, Ward told Herawi that no one liked her, that she did not belong at the department, that she should leave, and that her English was bad. It is undisputed that Ward was Herawi’s direct supervisor when she made these remarks and that Ward had substantial input into the ultimate decision to terminate Herawi. In fact, Ward conducted Herawi’s January 2002 performance appraisal, and she wrote the four memoranda in February and March of 2002 documenting incidents involving Herawi. Given this evidence, the court is satisfied that Herawi has raised the inference that her national origin was a motivating factor in the department’s decision to terminate her. The burden thus shifts to the Forensic Department to articulate a legitimate non-discriminatory reason for its decision to fire Herawi. The department has met this “exceedingly light” burden. It asserts that Herawi was not retained because she “had problems with autopsy procedures and with the chain of command.” Plainly, job performance, failure to follow instructions, and insubordination are all legitimate, non-discriminatory considerations. Because the department has met its burden, Herawi must show that its asserted reasons are pretextual. The court finds, again, that the evidence of Ward’s comments about Herawi’s national origin is sufficient for Herawi to meet her burden. Comments or remarks that suggest discriminatory animus can be sufficient circumstantial evidence to establish pretext. “Whether comments standing alone show pretext depends on whether their substance, context, and timing could permit a finding that the comments are causally related to the adverse employment action at issue.” In this case, Ward’s comments “might lead a reasonable jury to disbelieve [the department’s] proffered reason for firing” Herawi. Ward’s threat that she would report Herawi’s nationality to law enforcement makes it clear that she was antagonistic towards Herawi because of Herawi’s Iranian origin. Ward’s later comment that Herawi did not belong in the department, made at the same time she commented on Herawi’s accent, further evinced discriminatory animus. Standing alone, this might not be enough evidence to establish a genuine question of pretext, but Ward was Herawi’s supervisor, conducted her performance appraisal, and wrote four memoranda containing negative evaluations of her. In this context, the evidence suggests that Ward’s evident dislike for Herawi’s national origin may have infected the process of evaluating Herawi. The timing of Ward’s remarks reinforces this conclusion. The first incident in which Ward referred to Herawi’s nationality occurred one week before the narrative performance appraisal of Herawi was written, the second incident occurred on the same day—January 2, 2002—that Ward completed the performance appraisal form, and her final remarks were made three weeks before Herawi was fired. Because of this close temporal proximity, a jury could reasonably conclude that discriminatory attitude evidence in Ward’s remarks motivated the decision to fire Herawi. Accordingly, the court finds that Herawi has met her burden and that summary judgment on her termination claim is not appropriate. B. Retaliation Herawi contends that the Forensic Department retaliated against her for complaining to Downs and to Mitchell about Ward’s conduct. The department has moved for summary judgment, again, on the basis that its employment decision was motivated by legitimate, nondiscriminatory reasons. Under Title VII, it is an unlawful employment practice for an employer to discriminate against an employee “because [s]he has opposed any practice made an unlawful employment practice by this subchapter, or because [s]he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” The same McDonnell Douglas burdenshifting framework that applies to claims of discriminatory discharge applies to claims for retaliation. The Eleventh Circuit has established broad standards for a prima-facie case of retaliation. An individual alleging retaliation under Title VII must establish her prima-facie case by demonstrating “(1) that she engaged in statutorily protected activity, (2) that an adverse employment action occurred, and (3) that the adverse action was causally related to [her] protected activities.” “The causal link element is construed broadly so that a plaintiff merely has to prove that the protected activity and the negative employment action are not completely unrelated.” Herawi has established the elements of a prima-facie case of retaliation. First, she was engaged in protected activity on the two occasions that she spoke with Downs and on the one occasion she spoke to Mitchell. Second, Herawi was terminated. Third, Herawi satisfies the causality requirement because she was terminated only a week after her meeting with Downs and three days after her meeting with Mitchell. Because Herawi has produced evidence sufficient to meet her prima-facie burden, the burden of production shifts to the Forensic Department to produce a legitimate, non-retaliatory reason for its decision. As discussed above, the department has offered legitimate reasons for its decision. The department contends that it fired Herawi because of her problems with autopsy procedure and her problems following the chain of command. The burden thus shifts to Herawi to come forward with evidence sufficient for a reasonable fact finder to conclude that the department’s asserted reasons were pretext for retaliation. Herawi has met this burden. As discussed above, Herawi has presented substantial evidence of Ward’s animus towards her and thus raised a very real question about the extent to which the department’s assessment of her might have been influenced by Ward’s attitude. There is also evidence from which a reasonable fact finder could conclude that Ward’s assessment of Herawi was infected by a retaliatory motive. In October 2001, Bailey reported to Ward that Herawi had complained to him about her, and, in January 2002, Downs spoke to Ward about Herawi’s complaints. Thus, at the same time that Ward was evaluating and assessing Herawi’s job performance in the fall of 2001, and the winter of 2002, she was aware that Herawi had gone to various supervisors to complain about her. The court also considers it relevant to determining pretext that Herawi was dismissed so soon after she complained to Downs and Mitchell. While temporal proximity, standing alone, may not be enough to create a genuine issue of pretext, it is a relevant factor. Thus, taking into consideration the evidence of Ward’s discriminatory animus, her possible retaliatory motive, and the extreme closeness in time between Herawi’s complaints and her dismissal, the court concludes that Herawi has evidence sufficient for a reasonable fact finder to conclude that the department’s asserted reasons for her dismissal were pretextual.
IV. Conclusion
For the reasons given above, it is ORDERED as follows:
(1) The motion for summary judgment, filed by defendant Alabama Department of Forensic Sciences on November 12, 2003 (doc. no. 20), is granted with respect to plaintiff Mehsati Herawi’s hostile-environment claim.
Q1. Are you persuaded by the state’s evidence that it had an individual of a different national origin who was treated similarly to Herawi? If Ward (or other managers) treated everyone equally poorly, perhaps there is no national origin claim. What if Ward’s defense is simply that her poor treatment of Herawi had nothing to do with national origin, but that she just really did not like Hewari, specifically? Would that be an acceptable defense and could it have saved the state’s case?
Q2. The court explains that pretext may be based on comments depending on “whether their substance, context, and timing could permit a finding that the comments are causally related to the adverse employment action at issue.” What elements would you look to in order to find pretext, if you were on a jury?
Q3. The court explains that timing, alone, would not be enough to satisfy the causality requirement of retaliatory discharge. Given the facts of this case, if you were in charge of the department, and if Hewari truly was not performing at an acceptable level and you wished to terminate her after all of these circumstances, how might you have better protected the department from a retaliatory discharge claim?
Your answer must be typed, double-spaced, Times New Roman font (size 12), one-inch margins on all sides, APA format.