In an unpublished decision, one federal appellate court has penned an opinion that goes to the heart of how discrimination cases are analyzed under Title VII by re-interpreting the prima facie case requirements set by the U.S. Supreme Court in the McDonnell Douglas Corp. v. Green case in 1973.
Elements of a prima facie case under Title VII:
To support a discrimination claim under Title VII, an employee must show he or she is meeting the employer’s legitimate business expectations. Earlier this year, the 7th U.S. Circuit Court of Appeals held that test to be “flexible” and unnecessary where the issue is whether the employee was “singled out” for discipline based on a prohibited factor. Ismail v. Brennan, 7th Circ., No. 15-2701, June 28, 2016 (unpubl.).
Procedural background:
Yousef Ismail, a postal worker born in Israel and who grew up in Jordan, was suspended without pay for walking on a snowy sidewalk to deliver mail after the local postmaster told him to walk on the street instead.
Upon initial review of Ismail’s subsequent lawsuit, a district court concluded that Ismail could not bring discrimination or retaliation claims because he was fired for disobeying a direct order. That insubordination meant that Ismail was not meeting the legitimate expectations of his employer and, therefore, could not support a prima facie case under Title VII.
On appeal, the Seventh Circuit reversed that dismissal, noting that although an employee usually must show he or she was meeting the employer’s legitimate expectations in order to support a Title VII claim of discrimination, that standard is “flexible” and need not be applied if the issue is whether the employee was “singled out for discipline” because of a protected characteristic – in this case, Ismail’s Middle Eastern national origin. The court also implied that the test may be unnecessary where the person judging the employee’s performance is the same individual accused of discrimination.
Factual background:
Ismail began working for the US Postal Service (USPS) in 2001 as a letter carrier. In 2003, Ismail filed a lawsuit against the USPS, alleging that the local postmaster harassed and disciplined him because of his race and ethnicity. That lawsuit ended when summary judgment was granted in favor of the USPS by a district court.
Ismail claimed that the postmaster “became emboldened” after that decision and that the harassment and discrimination continued. In December 2010, events came to a head when the postmaster conducted an observation of Ismail on his mail route. During that observation, the postmaster saw that Ismail was about to walk on a snow-covered sidewalk and “began screaming at” Ismail that he should walk on the street where there was less snow. Ismail “believed that walking in the street was dangerous, so he took a couple of steps on the sidewalk” to avoid some snow-covered bushes and then walked back into the yard of the customer to whom he was delivering the mail. For that incident, Ismail was put on “emergency placement” and sent him home for 17 days of unpaid leave.
Ismail filed an EEOC charge based on that incident, alleging race and national origin discrimination. In June 2012, Ismail filed another EEOC charge after the postmaster issued a “letter of removal” to Ismail for a confrontation with a coworker, although Ismail grieved the letter and ultimately was reinstated to employment.
In July 2012, after the second EEOC charge, Ismail was approached by the postmaster, who said “good morning” to him multiple times. When Ismail failed to reply, the postmaster confronted Ismail with the workplace rules handbook and pointed out a section that required “courteousness in the workplace.” After that exchange, the postmaster then called the police, claiming that Ismail threatened to kill him. A police officer interviewed both men, as well as Ismail’s immediate supervisor, who stated that although he had been in the immediate vicinity, he had heard no threat. The police determined there was insufficient evidence to arrest Ismail. The postmaster then put Ismail on administrative leave and the police officer escorted Ismail from the building.
In December 2012, Ismail amended his EEOC charge to include those incidents and to add a claim of retaliation. He ultimately filed a lawsuit, which was dismissed by the district court. The basis for that dismissal was that Ismail could not show he was meeting the USPS’ legitimate business expectations because he had disobeyed the postmaster’s directive in 2010. The district court held that Ismail could not support a prima facie case of discrimination, and that USPS was entitled to summary judgment.
The Seventh Circuit reversed that decision and reinstated Ismail’s claims, finding that the lower court erred in requiring Ismail to establish that he was meeting his employer’s legitimate expectations. It determined that ordinarily, that factor must be established by an employee seeking to state a prima facie case of discrimination. However, the fact that the postmaster was judging Ismail’s performance, but also was the same person accused of discrimination weighed against applying that test inflexibly. Ismail’s lawsuit was allowed to continue.
Take-away for employers:
While this decision should not stop employers from disciplining or firing employees for performance-related issues, it adds a level of review, suggesting that such discipline should be conducted or corroborated by managers unrelated to any prior claims of discrimination made by the employee in order to avoid being linked to allegedly discriminatory behavior.
Photo of mailbox in Anchorage, Alaska from March 26, 2012 blog entry re: Life in Alaska (http://www.homesinanchorage.net/blog/category/life-in-anchorage)