By Wayne D. Garris, Jr.
After the employee reported some of his coworkers for stealing money, he alleged that he was subjected to anti-Christian and anti-Egyptian slurs, ridicule, and threats for the next three years.
The Second Circuit vacated and remanded a district court’s grant of summary judgment to Marriott International against the discrimination, retaliation, and hostile work environment claims of a former employee. The employee who was subjected to anti-Egyptian and anti-Christian comments and threats of termination by his coworkers and the employer’s HR director, filed suit after he was terminated allegedly for fighting with his coworker. The district court granted summary judgment for the employer finding that: 1) the employee could not establish a HWE claim because he did not show that he had been physically threatened by the defendant or that his work performance had suffered as a result of the claimed HWE; 2) many of the discriminatory comments were made in his presence, but were not directed to him, and so could not contribute to an actionable HWE; and 3) no rational jury could conclude that he would not have been terminated but for his complaints of harassment. The court held that all three of these conclusions were based on errors of law, vacated the decision, and remanded for further proceedings (Rasmy v. Marriott International, Inc., March 6, 2020, Cabranes, J.).
The employee worked as a banquet server at the Essex House. The employee is of Egyptian heritage and identified himself as a “devout Coptic Christian.” In 2012, the employee reported to the employer’s HR director that certain employees were engaging in wage theft and overcharging. According to the employee, the HR director responded, “I am sick and tired of this shit, and I’m sick and tired also because of you because you have called corporate about possible overcharg[ing].”
The employee alleged that his coworkers learned about his complaints and began to retaliate against him. They called him an “Egyptian rat,” and a “mummy.” Another banquet server, who knew that the employee was a Coptic Christian, told him that “the idea of God is garbage,” “[r]eligions [are] for the stupid people,” and that “priests are child molesters and alcoholic[s].” The employee contacted the employer’s Director of Associate Relations and another HR employee about the harassment, but no action was taken, and the harassing conduct continued.
EEO Charge. In May 2015, the employee filed an EEO charge against the employer. He alleged that after he filed the complaint, the HR director told him that she was upset about his complaint because it gave her extra work and that she verbally abused and threatened to terminate him. The HR director told the employee that a coworker had filed a complaint against him, but she did not allow him to see evidence of that complaint. Lastly, the employee alleged that the HR director told him to ‘keep [his] mouth shut about anything [that] happen[s] in this hotel or [his] days will be numbered.”
Escalation. The employee drove to the employer’s corporate headquarters in Bethesda, Maryland and and spoke to Keith Wallace the employer’s Senior Director of Global Investigations about the alleged theft, his internal complaints, and the alleged harassment and retaliation. The senior director agreed to investigate the money issues but declined to investigate the allegations of harassment and retaliation.
Termination. The employee got into an argument with one of his coworkers in the hallway between the restaurant and the kitchen. He alleged that the coworker spat in his face, insulted him, and threatened to get his gun and “finish [the employee] tonight.” The employer investigated the incident and terminated the employee and the coworker.
Thereafter, the employee filed suit alleging that his termination was discriminatory and retaliatory, and that he had been subjected to a HWE based on his race, religion, and national origin. The district court granted summary judgment to the employer and declined to exercise supplemental jurisdiction over the employee’s state law claims. The employee appealed.
Hostile work environment. The district court dismissed the employee’s HWE claim because many of his coworkers’ alleged statements were not expressly anti-religious. However, the Second Circuit held that the district court erred in finding that these comments were merely stray remarks, noting that “when the same individuals engage in some harassment that is explicitly discriminatory and some that is not, the entire course of conduct is relevant to a hostile work environment claim.” So here, allegations that the employee’s coworkers called him a “rat” or filed false discrimination charges were not explicitly religious; however, a jury could infer that those actions were discriminatory when those same coworkers called the employee derogatory names related to his religion or national origin such as “[t]he mummy,” “camel,” “Egyptian rat,” and “pretentious Christian.”
The appeals court also rejected the district court’s finding that the coworkers’ conduct was not based on discrimination, but on personal animus towards the employee because of his complaints about theft. That conclusion was an impermissible factual determination that should have been left to the jury.
Indirect comments. Similarly, the appeals court found that the district court erred in finding that comments that the employee overheard or that were not directed at him, but allegedly were made in his presence were stray remarks. Specifically, one of the employee’s coworkers, who is of Greek descent regularly made comments about religion and the superiority of Greek people. The appeals court concluded that there were disputed issues of material fact as to whether these comments, while not made directly to the employee, were stray remarks or “sufficiently pervasive or chronic conduct constituting consciously discriminatory animus.”
Terms and conditions. The district court went on to hold that although a jury could find that the harassment was pervasive, it was not actionable because it did not alter the conditions of the employee’s employment because he did not allege that he had been physically threatened or that the claimed harassment, had interfered with his job performance. The appeals court held that this conclusion “misreads Title VII.”
The appeals court acknowledged that physical threats or an impact on job performance can be indicative of a HWE but are not dispositive. The overall severity and pervasiveness of the conduct must be examined, and “[b]y it very nature that determination is bound to raise factual disputes that likely will not be proper for resolution at the summary judgment stage.” Furthermore, the employee was involved in a physical altercation in which a coworker allegedly threatened to shoot him, which led to his termination. Lastly, the district court failed to consider the employee’s statements that the harassment made him nervous and cry regularly or that he started seeing a psychiatrist who prescribed anti-anxiety medicine. All these facts suggested that the conditions of his employment had been altered.
Retaliation. Lastly, the district court erred when it dismissed the employee’s retaliation claim after finding he could not establish a prima facie case of retaliation because he failed to show that his complaints were the “but-for” cause of his termination. As a preliminary matter, the but-for causation standard does not apply to the employee’s prima facie case, it applies when the employee is trying to prove that the employer’s reason his termination is pretextual.
Turning to the facts of the claim, the appeals court noted that the employee had complained about harassment for years and was terminated five months after his last complaint, which the Second Circuit has held is not too long to establish a causal relationship. Furthermore, the employee alleged that the HR director verbally abused and threatened to fire him, on more than one occasion, in response to his complaints. Given these allegations, the appeals court concluded that a jury must decide whether the employer terminated the employee because of the fight with his coworker or his complaints of harassment.
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