Category Archives: Race Discrimination

One Severe Incident is Enough to Prove Racial Harassment at the Workplace

Employees are protected from harassment at the workplace when the underlying reason behind the harassment is protected by the law. For instance, sexual harassment takes place when employees face intentional discrimination based on sex. Racial harassment takes place when an employee is subjected to harassment based on race. A recent Third Circuit Court of Appeals decision makes it clear that even one isolated incident can form the basis of a harassment claim.

In Castleberry v. STI Group; (3rd Cir. no. 16-3131 (July 14, 2017), two African- American males were fired by a staffing-placement agency which employed the employees at Chesapeake Energy an oil and natural company. The employees claimed that the termination was racially motivated, citing discriminatory remarks at the workplace and unfair work treatment. The Third Circuit reversed the trial court’s 

dismissal of the employees’ Complaint finding that the employees sufficiently alleged claims of harassment, disparate treatment discrimination, and retaliation.

In Castleberry, the employees alleged that when they arrived at work, 

on several occasions, someone had anonymously written “don’t be black on the right of way” on sign-in sheets, and when working on a fence-removal project, a supervisor told one of the employees and his coworkers that if they had “nigger-rigged” the fence, they would be fired. Following the last incident, the employees reported the offensive language to a superior and they were fired two weeks later without explanation, they were rehired shortly thereafter, but then terminated again for “lack of work.” The employees filed a lawsuit alleging harassment, discrimination, and retaliation in violation of 42 U.S.C. §1981 which provides, “All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts . . . to the full and equal benefit of all laws . . . as is enjoyed by white citizens . . .” The employees alleged a hostile work environment on the basis of race which requires that an employee show that the employee suffered intentional discrimination because of race, the discrimination was severe or pervasive, the discrimination detrimentally affected the employee, the discrimination would detrimentally affect a reasonable person in like circumstances, and the existence of respondeat superior liability (i.e. a basis for the employer being responsible for the conduct- such as a manager making the comments).

In Castleberry, the Third Circuit made it clear that to prevail on a harassment or hostile work environment claim, an employee must establish that . . . the discrimination was severe or pervasive, a standard the Supreme Court has articulated as much on several occasions. Then the Court considered whether a supervisor’s single use of the “n- word” is adequately “severe” and if one isolated incident is sufficient to state a claim or harassment or a hostile work environment. The Third Circuit found that an isolated incident of discrimination if severe can suffice to state a claim for harassment. Applying this standard, in Castleberry the Court held that because the employees alleged that their supervisor used a racially charged slur in front of them and their non-African- American coworkers and within the same breath, and the use of this word was accompanied by threats of termination which ultimately occurred, the single incident was sufficient to show severe conduct that could create a hostile work environment.

The Court also noted that the employee could also satisfy the “pervasive” standard as the employees alleged that on several occasions the sign-in sheets bore racially discriminatory comments and the employees were required to do menial tasks while less experienced white colleagues were instructed to perform more complex work. Thus, the Court held that the employees pled a plausible claim of a hostile work environment under either theory- as the harassment was both “severe” or “pervasive.”

In Castleberry, the Court also held that the employees had a viable retaliation claim based on their claim that they were fired for reporting the racially discriminatory remark made by their supervisor. To establish a retaliation, claim an employee must establish that the employee engaged in protected activity by making a claim of discrimination based on a good faith reasonable belief; the employer took an adverse employment action against the employee; and there was a causal connection between the employee’s participation in the protected activity and the adverse employment action. As the Third Circuit found that a single incident can amount to unlawful activity, the Third Circuit also reversed the trial court’s dismissal of the retaliation claim. The court also reversed the dismissal of the employees’ discrimination claim based on disparate treatment because the employees belong to a racial minority; there was evidence of an intent to discriminate based on race and the termination of employment is a protected activity under §1981.

Andrew Abramson is a Philadelphia area employment discrimination attorney. For more information about race discrimination and Abramson Employment Law see


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Pennsylvania Employee Laid Off After 33 Years of Service Has Race Discrimination Claim

When an employer has a reduction in force (i.e. layoff), an employee may have an employment discrimination claim if the employee is able to establish the reason that the employee was chosen for a layoff and other similarly situated employees were not laid off is due to a protected criteria such as the employee’s age, race, sex, religion, national origin or a disability. In Johnson v. Verizon Services Corporation, E. D. Pa. no. 16-1023 (DuBois, J,) (April 18, 2017), the court denied the employer’s motion for summary judgment and held that an employee, the only African-American employee in his department, who was terminated during a reduction-in-force after a 33 year career at Verizon had sufficient evidence of race discrimination to proceed to a jury trial.

In Johnson, the employee worked on a code review team, responsible for identifying errors and vulnerabilities in computer applications and recoding. The employee had the highest job title ranking available in the IT Department; had received above satisfactory performance ratings, including many positive comments concerning his work performance. Of the 6 employees on the code review team, the Plaintiff, the only African-American was terminated, as part of a reduction-in-force (“RIF”) and the other 5 employees who were retained all had less work experience.

In defending the race discrimination claim, the employer contended that it terminated the Plaintiff during the RIF because he was the least valuable member of the coding team and had performance issues. According to the selecting manager, there was no specific standard used to determine who would be selected for the RIF because the manager “owned the department” so he knew what was required and he “put together a table of pros and cons” on all of the employees. However, the manager testified that he destroyed the list approximately 6 months after the termination and there were no records of any kind available regarding the manager’s selection determination.

Race discrimination cases are analyzed under the McDonnell Douglas burden shifting test. In order to established a prima facie case of race discrimination where there is a reduction in force, an employee must show that (1) the employee belongs to a protected class, (2) the employee was qualified for the position, (3) the employee was terminated, and (4) other employees outside of the protected class were retained. An employee’s qualifications for purposes of proving a prima facie case are determined by an objective standard. Once an employee establishes a prima facie case of discrimination, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for the termination. Then an employee must show that the employer’s articulated reason was a pretext for intentional discrimination by pointing to some evidence from which a factfinder could reasonably either (1) disbelieve the employer’s articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer’s decision to terminate employment.

In Johnson, there was no dispute that the Plaintiff was the only African-American in his group and the only employee who was terminated. Thus, the only element of the prima facie case at issue was whether he was qualified for his job. The court found that by having 33 years of employment experience at Verizon, 3 years on the coding team and only positive performance written performance appraisals, the Plaintiff was qualified for the job from which he was terminated. The employer’s proffered reason for termination was that the Plaintiff was ranked lowest in the coding group with respect to the coding skills necessary for the code review job and other employees possessed primary expertise, which the court held could be a legitimate, nondiscriminatory reason for his firing. Then the court analyzed the evidence of pretext and held that positive performance reviews, lack of a disciplinary record, a long work history with Verizon, a ranking of being the most proficient member of the team with commendations for a wealth of knowledge and experiences and no written evidence of negative performance issues created a genuine dispute of material fact regarding the proffered reason for termination. The court noted that its findings were particularly influenced by the fact that the only evidence of deficient work performance presented by the employer was “subjective evaluations” which are more susceptible of abuse and more likely to mask pretext. Thus, the court denied the employer’s motion for summary judgment permitting the case to proceed to a jury trial.

Andrew Abramson and Abramson Employment Law represent employees who are terminated and are the victims of race discrimination and all other forms of employment discrimination. For more information on Pennsylvania employment law see our website at

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$2.5 Million Employment Discrimination- Race and Retaliation Verdict Affirmed

In most employment discrimination cases there are two common measures of damages sustained by an employee, economic damages, such as lost salary, wages, bonuses and benefits following the termination of employment, and compensatory damages, which compensate an employee for emotional distress damages. Economic damages are far easier to quantify. As a recent New Jersey Supreme Court case illustrates, when there are facts which support employees suffering substantial emotional distress in an employment discrimination case, courts will permit a jury to award significant emotional distress damages.

In Cuevas v. Wentworth Group, (no.-30-14, 075077) (N. J. Super A. D. September 19, 2016), in a race discrimination and retaliation case, a unanimous Supreme Court of New Jersey affirmed a jury award of $2.5 million to two Hispanics brothers, including $800,000 in emotional distress damages to one employee and $600,000 to the other employee. The employees were employed as a regional vice president and portfolio manager at a property management company. The employees presented evidence that they were routinely subject to racially disparaging and humiliating remarks by the employer’s executives, including the executive vice president of operations. The employees alleged that, they routinely faced biting remarks that invoked racially demeaning stereotypes. Many of the degrading remarks occurred at senior executive meetings attended by an in-house lawyer, other executives, and regional vice presidents. The employees filed a lawsuit under the New Jersey Law Against Discrimination (LAD) alleging race discrimination, retaliation and a racially hostile work environment.

The evidence at the trial included the employees being referred to as Chihuahuas, Latin lovers, and the “Rico Suave brothers.” At a meeting when music was played, an employee interjected, “Do you think we could get a little Mariachi or salsa music in the background”- “something a little more to Ramon’s (one of the brothers) taste?” At a conference to discuss entertainment, an employee said that Ramon should look through his Rolodex because he might know “a salsa band, a Mariachi band that can perform.” Although Ramon attempted to deflect the hurtful comments, he was embarrassed, particularly when they were made in the presence of employees that he supervised. On one occasion, an executive stated that if he did not pick up the check, “Ramon can join his father [in the back] and you guys can wash dishes.” On another occasion when one of the employees came to the office explaining that he had to fix a flat tire, an employee suggested that if a “Puerto Rican” were observed with a crowbar kneeling by a car, he might be mistaken as “trying to steal the car or the hubcaps.” Two former property managers for the employer also testified that n executive made comments that they would be safe in bad neighborhoods when accompanied by Ramon because “he’s one of them” and because he was “Spanish.” The employer’s director of human resources also referred to the brothers as “Latin lovers.”

Just prior to being terminated one of the brothers told the employer’s in-house lawyer, “I really would like it if those comments at these executive meetings could stop” and he described the repetitive offensive remarks as “silly,” “childish,” and “degrading.” The lawyer replied that he should “calm down” and that the remarks were “good natured ribbing,” not “that big a deal,” and should not be taken “so seriously.” Four days later, one of the brothers was fired after he had just been given a performance-based raise of $10,000 four weeks earlier and shortly thereafter, the other brother was terminated. While the employer contended that employees were terminated for poor work performance, the employer could not produce any documents to substantiate a claim that the employer had received client complaints

In Cuevas, the New Jersey Supreme Court rejected the employer’s argument that in an employment discrimination case, only nominal damages may be awarded to compensate an employee for emotional distress when there is no independent corroborative proof or a showing of resulting physical or psychological symptoms. Instead, the Court held that a plaintiff employee may recover damages for emotional distress and mental anguish arising out of embarrassment, humiliation, and other intangible injuries without medical proof, as courts must give due regard to the opportunity of the jury to pass upon the credibility of the witnesses. Thus, the New Jersey Supreme Court found that due to the special harm that can be caused by willful discrimination in the workplace, compensatory damages for emotional distress, including humiliation and indignity, are remedies that require a far less stringent standard of proof than that required for a tort-based emotional distress cause of action.

The Court noted that the employees were entitled to recover all natural consequences of the employer’s wrongful conduct, including emotional distress and mental anguish damages arising out of embarrassment, humiliation, and other intangible injuries as the mental anguish and humiliation were sustained over a long period, and was not fleeting or insubstantial. While the Court noted that the jury awards for emotional distress damages of $800,000 and $600,000 to the employees “are probably on the high end, they were not so wide of the mark that they shock the judicial conscience.”

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Business Which Hires Workers Through Staffing Firm Deemed Employer

An increasing trend in the business world is for companies to hire workers to perform work through temporary staffing companies. When these workers suffer discrimination in the workplace, questions arise as to the legal determination of which entity or entities are the legal “employer” subject to workplace discrimination claims. In Faush v. Tuesday Morning, Inc. no. 14-1452 (November 18, 2015), the Third Circuit Court of Appeals reversed the Eastern District of Pennsylvania Court and held there was more than sufficient evidence that a company that hired a staffing company to supply workers could be deemed an employer that can be sued for racial discrimination.

In Faush, the worker was officially employed by Labor Ready, a staffing firm that provides temporary employees to a number of clients, including retailer, Tuesday Morning, Inc. Over the course of a month, Labor Ready sent temporary employees to a new Tuesday Morning store to perform certain work. The worker claimed that he and other African-American temporary employees who were working at the Tuesday Morning store were subject to disparate treatment based on their race and use of a racial slur.

Title VII, the federal law that prohibits race discrimination in the workplace and forbids discrimination by employers, employment agencies, labor organizations, and training programs. In Faush, the Third Circuit held that the appropriate test for determining whether an employment relationship exists is found in the United States Supreme Court case, Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318 (1992), where the determination of whether a hired party is an employee is made under the general common law of agency. Criteria to be considered include the hiring party’s right to control the manner and means by which the product or service is accomplished, which requires consideration of many factors including: the skill required; the source of the instruments and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party’s discretion over when and how long to work; the method of payment; the hired party’s role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party. All of the incidents of the relationship must be assessed and weighed with no one factor being decisive. In addition, the inquiry is not which of two entities should be considered the employer of the person in question, as the law clearly permits a finding that two different entities may be “co-employers” or “joint employers” of one employee for purposes of Title VII.

Among the factors that the Court found compelling enough to find an employment relationship in Faush was primary responsibility for ensuring compliance with prevailing-wage laws; rather than paying a fixed rate for the completion of a discrete project, compensation was based on each hour worked by each individual temporary employee at an agreed-upon hourly; maintaining ultimate control over whether the employee was permitted to work at a store; and overwhelming control over assignments, direct supervision, site-specific training, furnishing equipment and materials. In Faust, the court concluded that unlike a contractor relationship, in which an agency is hired to perform a discrete task and oversees its employees’ work in the completion of that project, the employees were hired on an hourly basis to perform services under the supervision of management, which exercised control over the temporary employees’ daily work activities. Interestingly, the court noted that its holding “will pertain to a large number of temporary employment arrangements, with attendant potential liability under Title VII for the clients of those temporary employment agencies.

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Retaliation: Employee Who Complains About Race Discrimination and is Terminated Has Retaliation Claim

Employment laws protect employees from retaliation when an employee complains that he is being discriminated against at the workplace. In Braddock v SEPTA (E. D. Pa. April 21, 2015 (O’Neill, J.), the employee worked as the only black male Yard Master for SEPTA for over three decades. The employee concluded that he was experiencing what he perceived to be racial discrimination at his workplace, because he was being “treated differently than Caucasian Yard Masters” by his supervisor, and other employees. The employee complained to the appropriate individuals, and eventually was fired. The employee filed a retaliation claim against his employer alleging that his termination was directly correlated to the race discrimination complaints that he made.

After proceeding though discovery, the employer filed a motion for a summary judgment, claiming that the employee failed to make a showing sufficient to establish the existence of an element essential to a retaliation claim. In order to establish a case of retaliation, an employee is required to show 1) that the employee engaged in protected employee activity; 2) an adverse action by the employer, either after or contemporaneous with the employee’s protected activity; and 3) a casual connection between the employee’s protected activity and the employer’s adverse action. Protected activity, under Title VII includes, “opposition to unlawful discrimination and protects an employee who complains about employer conduct he or she reasonably believes to be an unlawful employment practice, whether or not the conduct is actually protected discrimination under the law.

In Braddock, “prior to his termination, during a telephone call with his supervisor the employee testified that he attempted to complain over the phone to his supervisor that he was…being racially discriminated against…and that he was being treated differently than other Yard Masters.” The employee testified that his supervisor cut him off and accused him of calling the supervisor a racist; the employee then denied calling the supervisor a racist. The supervisor did not deny the existence of the phone call, and testified that the employee called him a racist and the supervisor stated that the employee said that the supervisor was out to get him. The court found that there was undisputed testimony that establishes the only reason for the call was to inform the supervisor and other union officials of the conduct at issue.

The employee file a motion for summary judgment arguing that, there is no issue of material fact regarding whether Braddock engaged in protected conduct and that therefore Braddock cannot sustain a claim of retaliation. The employer argued that the employee’s allegations were vague and self-serving, and not “objectively reasonable to constitute protected activity.” However, the court found that evidence suggests that Braddock did not simply report these issues of racism objectively, but with opposition to it, which constitutes protected activity under Title VII.

In Braddock, the court found that there are no undisputed issues of material fact regarding the complaint of racial discrimination to the employer’s EEOC office prior to the employees termination and there was evidence of a discussion of the employees complaints of racial discrimination prior to Braddock’s termination and the supervisor conceded that the fact that the employee called him a racist was at least one reason for the employers decision to terminate the employee. The Court held that even if a written complaint had not been filed, the other complaints may be sufficient to establish a retaliation claim since Title VII claims can involve formal charges of discrimination as well as informal protests of discriminatory employment practices, including making complaints to management. As a consequence, the court found that the employee established protected action, and the employee could proceed to trial with his retaliation claim.

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Age Discrimination & Retaliation: Employee Terminated After Complaints About Supervisor’s Discriminatory Comments Can Proceed with Age & Retaliation Claims

Employees who are terminated after they complain about discriminatory comments by a supervisor which are based on age and race bias are protected by discrimination laws. In Kargbo v. Philadelphia Corporation for Aging, 2014 U.S. Dist. LEXIS 56253 (E. D. Pa. April 22, 2014)(Baylson, J.), the Plaintiff employee, a 52-year-old black male from West Africa, was a service coordinator providing social and health care benefits to senior citizens who was fluent in four languages including Russian. After 5 weeks of training Plaintiff began working under his supervisor who said both at a staff meeting and privately to Plaintiff, “I don’t believe you are the right man for this job. You are 52 years old. This job is normally for young college graduates.” Also, the supervisor commented to clients on three occasions that “she does not believe a black man from West Africa (referring to Plaintiff) can speak Russian so fluently.” Plaintiff then reported and met with his supervisor’s manager and the Director of Human Resources to complain about the comments. After the Plaintiff employee made the complaints, the supervisor started treating him poorly and subsequently documented a number of performance problems purportedly related to Plaintiff’s ability to use the computer systems and to input client information correctly. Within a few months the supervisor submitted a discipline form recommending termination.

The Court found that the Plaintiff could proceed to trial with his claim for age discrimination. The Age Discrimination in Employment Act (ADEA) prohibits age discrimination in employment against any person over age forty. In order to establish a prima facie case of discrimination, a plaintiff must demonstrate: (1) he is older than 40; (2) he applied for and was qualified for the position; (3) he suffered an adverse action; and (4) he was replaced by a sufficiently younger person to support the inference of age discrimination. If the plaintiff establishes a prima facie case, the burden shifts to the defendant to offer a legitimate, non-discriminatory reason for the adverse employment action which is satisfied by introducing evidence, which, if taken as true, would permit the conclusion that there was a nondiscriminatory reason for the unfavorable employment decision. If the defendant is able to come forward with a legitimate, non-discriminatory reason for its action, the plaintiff can defeat a motion for summary judgment by providing evidence from which a fact finder could reasonably either (1) disbelieve the defendant’s articulated legitimate reasons or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the defendant’s action.

In Kargbo, the Plaintiff met the prima facie case burden by showing that he is older than forty, he was qualified for the job because he was hired and initially received a satisfactory job performance review, and thereafter he was terminated, which is an adverse action. Further, the court held that since Plaintiff produced evidence he was replaced by a person twenty-four years younger than him; he produced sufficient evidence that he was replaced by someone young enough to support an inference of age discrimination. The employer pointed to several legitimate reasons it terminated Plaintiff for poor performance, specifically for his inability to learn and use computer software essential to performing the functions of his job, problems making services requests and complaints from clients and a service provider. Therefore, the burden shifted back to Plaintiff to show these reasons were mere pretext, and his age is the real reason for the termination. The Plaintiff pointed to the supervisor’s repeated comments regarding Plaintiff’s age to show a discriminatory reason for his termination. Viewing the evidence in the light most favorable to Plaintiff, the court held that the supervisors statements are not stray remarks and instead were comments by a decision maker that directly commented on Plaintiff’s ability to do his job, which can be direct evidence of age-related animus, supporting Plaintiff’s showing of pretext.

In Kargbo the Court also found that Plaintiff could ales proceed with his claims for retaliation under the ADEA and Title VII, alleging he was terminated because he complained about discriminatory conduct. To establish a prima facie case of retaliation a plaintiff must show (1) protected employee activity; (2) adverse action by the employer either after or contemporaneous with the employee’s protected activity; and (3) a causal connection between the employee’s protected activity and the employer’s adverse action. If a prima facie case is established the burden of production shifts to the defendant to show a legitimate nonretaliatory reason for the adverse action. The plaintiff must then show both that the employer’s proffered explanation was false, and that retaliation was the real reason for the adverse employment action.

A protected activity can be either participation in certain discrimination proceedings or opposition to discrimination. Protected participation occurs when the plaintiff has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding. Protected opposition is conduct opposing any practice in violation of discrimination laws such as a complaint to a supervisor or manager. A plaintiff does not need to show the conduct complained of was in fact discriminatory, but only that he had a good faith, reasonable belief that a violation existed.

In Kargbo, the supervisor’s comments were explicitly directed at Plaintiff and referred to his ability to do his job. Thus, the court found that a reasonable trier of fact could find it was reasonable to believe the statements violated the ADEA and were protected activity because the comments specifically mentioned Plaintiff’s age, that he was too old, and that he could not do the job because of his age. In addition, the supervisor’s comments about Plaintiff’s race were repeated several times and it was not unreasonable to believe that a supervisor should not be commenting on an employee’s race to clients in the workplace. Accordingly, the court also found sufficient evidence to show Plaintiff had a reasonable, good faith belief that the comments amounted to a hostile work environment, and these complaints were also a protected activity.

An adverse action is any conduct that is materially adverse and would have dissuaded a reasonable worker from making or supporting a charge of discrimination. Since Plaintiff testified to abusive conduct following his complaints, and he was terminated, there was clearly an adverse action. As to a causal connection a plaintiff can show causation by showing (1) an unusually suggestive temporal proximity between the protected activity and the allegedly retaliatory action, or (2) a pattern of antagonism coupled with timing to establish a causal link or (3) from the evidence gleaned from the record as a whole the trier of the fact should infer causation. Cases that accept mere temporal proximity between an employer’s knowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a prima facie case uniformly hold that the temporal proximity must be very close.

In Kargbo, the Court held that because the Plaintiff made five complaints about the supervisor’s discriminatory comments and treatment over a three-month period, including two or three weeks before he was terminated, the timeframe supported an unusually suggestive temporal proximity and that the evidence established a pattern of antagonism following his complaints. Therefore, a jury could find that the supervisor’s documentation of performance problems and client complaints, the escalation of that documentation in the two weeks before his termination, and the conduct towards Plaintiff after his protected activity shows a causal connection between the complaints and Plaintiff’s termination.

The court also held that a reasonable jury could conclude that the alleged performance problems were a pretext for retaliation for his complaints because there were no issues about Plaintiffs’ computer performance problems until shortly after Plaintiff filed complaints , a poor evaluation came after the complaints and it could possibly be inferred that the supervisor’s emails to Plaintiff with instructions on using the various computer programs were not to help him but were to make him look incompetent to create a paper trail of nonexistent performance problems.

In Kargbo, the court also found that the Plaintiff could proceed to trial on a hostile work environment claim but the evidence was not sufficient to proceed on a Title VII claim for wrongful termination.

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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.

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