Race, National Origin Discrimination & Retaliation: Employee Subjected to Discrimination & Retaliation for Complaining about Discriminatory Conduct Can Proceed to Trial

In employment discrimination cases there are often factual disputes which arise concerning key elements of employment discrimination. As demonstrated by Codada, v. Grace Adult Day Health Care Inc., 2014 U.S. Dist. LEXIS 33257(E. D. Pa. March 14, 2014)(Shapiro, J.), where there are factual disputes regarding key elements of a discrimination or retaliation case, an employee is not entitled to summary judgment and the factual disputes need to be resolved at trial by a jury.

In Codada, the plaintiff employee was a black male of Haitian descent employed by a provider of day services to the elderly for five years until his employment was terminated. After a change in supervisor, the employee began to receive less and less overtime and felt these changes were unfair and he was being discriminated against because of his race and ethnicity. At a meeting where he was given a written warning purportedly disciplining him for tardiness which he disputed, the employee stated that he felt that he was being unfairly discriminated against because of his race. Thereafter, the employee’s work hours were reduced, he completed an EEOC intake form alleging race and national origin discrimination and retaliation and the EEOC sent the employer a notice informing it the employee had initiated a complaint; thereafter, the employee filed a formal EEOC Charge. The employee also alleged that he was subjected to an increasingly hostile environment where co-workers openly made discriminatory comments about his race and ethnicity, including referring to him as a “monkey” in front of clients and co-workers, calling Haitians “dirty” and “poor,” and saying to him God painted him and “forgot to remove the paint.” The employee was also requested to produce a gas receipt and undergo a mid- employment federal criminal background check while other employees were not.

After the EEOC Charge was filed the employee believed his supervisor’s behavior toward him was demeaning and disrespectful and when he attempted to complain about his treatment or his working conditions, he was told to leave the supervisor’s office, and on one occasion, the supervisor asked the employee why he still worked at the employer and encouraged him to find another job. Ultimately, the employee was issued a written warning for clocking in before his scheduled start time even though the employee insisted his transportation manager had given him permission to start and end his shift approximately a half hour earlier to accommodate family responsibilities. Shortly thereafter, the employee’s employment was terminated. The employee filed claims of race and national origin discrimination and retaliation.

An employee must establish five elements under the totality of the circumstances to prove a hostile work environment claim: (1) the employee suffered intentional discrimination on account of membership in a protected class; (2) the discrimination was pervasive and regular; (3) the discrimination detrimentally affected the employee; (4) the discrimination would have detrimentally affected a reasonable person in the employee ‘s position; and (5) the existence of respondeat superior (employer liability for the actions of employees).

As to the race and national origin discrimination claims employment discrimination actions are subject to a burden-shifting test. First, the plaintiff must establish a prima facie case of discrimination. The burden then shifts to the defendant to articulate some legitimate, non-discriminatory reason for the alleged adverse action. Then the burden shifts back to the plaintiff to show defendant’s proffered reason is in fact pretext for discrimination. To establish a prima facie showing of discrimination, the plaintiff must show: (1) the employee is a member of a protected class; (2) the employee was qualified for the position he held; (3) the employee suffered an adverse employment action; and (4) the adverse action took place under conditions giving rise to an inference of discrimination.

In Codada, the court found that there was a factual dispute regarding whether the employee could show pretext because an employee must submit evidence which (1) casts doubt upon the legitimate reason proffered by the employer such that a fact-finder could reasonably conclude that the reason was a fabrication; or (2) would allow the fact-finder to infer that discrimination was more likely than not a motivating or determinative cause of the employee’s termination. The court found that the employee could proceed to trial because in addition to presenting conditions supporting an inference of discrimination, the employee averred he received authorization to clock in before his scheduled shift and whether he was authorized to do so, an issue of fact for a jury to decide.

In order to establish a prima facie case of retaliation, an employee needs to show that: (1) the employee engaged in a protected activity; (2) the adverse action by the employer was taken contemporaneously with or after the employee engaged in the protected activity; and (3) a causal connection between the protected activity and the adverse action. In Codada, the court found that the employer’s contention that the employee did not engage in a protected activity was frivolous because it was undisputed the employee objected to his treatment and accused a supervisor of discriminatory treatment on account of his race at a meeting and thereafter the employee filed a charge of discrimination with the EEOC. While the court found a “relatively long lapse of time between the employee ‘s alleged protected activities” (June 2011, September 2011, and April 2012) and his termination (July 2012), which does not allow the conclusion of a per se inference the termination was causally connected to the protected conduct, the timing of the actions (temporal proximity) is not the exclusive way to show causation, as a court is permitted to conclude that the proffered evidence looked at as a whole, may suffice to raise the inference. In Codada, the court found that there was evidence of a general environment of hostility and discrimination and several adverse actions with temporal proximity to protected conduct which were sufficient to create triable issues of fact as to whether there was a causal connection between the employee’s activities and the adverse employment actions.

For more information on race discrimination, national origin discrimination , retaliation and Abramson Employment Law, see http://www.job-discrimination.com/lawyer-attorney-1126519.html, on see http://www.job-discrimination.com/lawyer-attorney-1126498.html.


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Filed under Hostile Work Environment, National Origin Discrimination, Race Discrimination

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