By Dave Strausfeld, J.D. A Turkish-born Muslim civil engineer survived summary judgment on his claim that, due to his religion or national origin, he was suspended for five days on trumped-up grounds of using the gym during work hours, and then issued a related negative performance appraisal. A federal district court in Connecticut found evidence of pretext, including that several coworkers expressed concern that the employee was a terrorist after the Boston Marathon bombings; one supervisor testified he checked his car after work to make sure the engineer had not placed a bomb under it. This and other evidence helped the engineer get to trial on his Title VII discrimination claims. His retaliation claim survived too (Ucar v. Connecticut Department of Transportation, August 12, 2016, Hall, J.). Suspended for using on-site gym. Beginning in late 2012, the engineer, a U.S. citizen, was the subject of an investigation into his use of the gym at the Connecticut Department of Transportation (DOT) where he worked. The investigation was triggered when a supervisor reported seeing him at the gym consistently between roughly 7:00 and 7:30 a.m. for the better part of two months; the engineer’s work day started at 7:00 a.m. and his immediate supervisor did not arrive until 8:00. The engineer said he was just getting water from the gym water cooler, as he did not like the water fountains at his office. After a disciplinary hearing, he was suspended for five days over his at-work gym usage, and a short time later, he received a negative performance appraisal, which was based largely on the gym use investigation and resulting sanction. The negative performance appraisal subsequently hindered him in obtaining promotions at the DOT, he said. Comparator evidence. The engineer asserted that American-born, non-Muslim coworkers were permitted to leave their desks to take cigarette breaks, short walks, and the like, without recording the time off on their timesheet and without being penalized in the manner that he was for visiting the gym. While some of the coworkers to whom he compared himself were not a part of his work unit, a reasonable juror could conclude that they were sufficiently similarly situated, the court found. This comparator evidence assisted him in establishing a prima facie case, as well as in showing pretext. "Openly-expressed prejudices." Perhaps the engineer’s strongest evidence of pretext was that several of the same individuals who carried out the gym investigation would later go on to prompt a related, and unjustified, investigation into his alleged bullying. In that investigation, reference was made to the Boston Marathon bombings as a reason why coworkers were concerned about the engineer’s behavior. One supervisor later testified in a deposition that he checked underneath his car after work to make sure there was no bomb there, and even asked another supervisor to search the engineer’s backpack and inspect its contents. These "openly-expressed prejudices," the court wrote, provided additional evidence that the adverse actions against the engineer may have been based on his religion and national origin. Affidavits. Also helpful to the engineer was an affidavit signed by his union rep to the effect that the gym investigation was "totally ridiculous" and that the resulting sanction was disproportionate. Another affidavit from a fellow engineer expressed shock at the "negativity and harsh tone" of the engineer’s performance review because the affiant’s experience working with the engineer had been "very positive." Although the DOT asked the court to disregard these affidavits, the agency’s objections were "appropriate areas for cross-examination, not appropriate bases for summary judgment," the court found, denying summary judgment in relevant part on the engineer’s discrimination claim. His retaliation claim survived too.
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