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Race bias claim of Muslim executive fired for inappropriate comments to women revived

By Kathleen Kapusta, J.D.

The executive presented evidence that a white manager, who was placed on leave after being accused of a pattern of sexual harassment and gender discrimination, was allowed to return to work.

Citing evidence that Alliance for Sustainable Energy treated a white male manager who was accused of sexual harassment more leniently than it treated a Muslim executive whom it fired for making inappropriate comments to two women, along with evidence of an inadequate investigation into the executive’s actions, the Tenth Circuit reversed the grant of summary judgment against his Title VII race discrimination claim. However, because the executive failed to present any evidence of discrimination based on gender or religion, the court affirmed summary judgment on those claims (Ibrahim v. Alliance for Sustainable Energy, LLC, April 20, 2021, Bacharach, R.).

Move on. During his tenure with Alliance, the executive texted an administrative assistant and offered to help pay for her rental car. A few weeks later, he invited her to a movie. She turned down both offers and then told her supervisor, who spoke to the executive’s supervisor. The executive’s supervisor warned him to be careful, noted that he had authority over her, and recommended that he move on from the incident.

Positive vibe. Two weeks after that, while at a reception with members of a delegation from the United Kingdom, the executive told a female delegate that he had gotten a positive vibe from her and asked how she dealt with men who did not take her seriously “as an attractive young female.” When an official at the U.K. consulate told the executive’s supervisor about the comments, the executive was placed on administrative leave and then fired for his lack of professionalism and judgment.

Lower court proceedings. The executive sued under Title VII for race, gender, and religious discrimination and the district court granted summary judgment against all claims.

Race discrimination. Turning first to the executive’s race discrimination claim, the Tenth Circuit noted that at issue was whether the circumstances gave rise to an inference of discrimination. The executive pointed to Alliance’s treatment of the white manager who had faced complaints by a female subordinate about a pattern of sexual harassment and gender discrimination. When an investigation revealed that he had yelled and cursed at a female subordinate, exchanged sexual text messages with subordinates, asked a subordinate to run a personal errand during work hours, and showed favoritism in hiring, the manager was placed on administrative leave, required to take management and leadership classes, and allowed to return to work.

There was also evidence they had both been accused of violating the same policies and that the same three individuals who decided to fire the executive decided to issue only a warning to the manager. Accordingly, the appeals court found the executive presented a prima facie case of discrimination based on race.

More lenient. And while Alliance argued that it fired the executive because of his inappropriate comments to the two women, the court found he rebutted this explanation with evidence of greater leniency toward the manager in similar circumstances. Although Alliance argued that the two were not similarly situated because they had different jobs—the manager was a group manager who reported to a center director and the executive was an acting center director—the court noted that both acted as supervisors and bore responsibilities as executive managers. Given this, said the court, a factfinder could reasonably consider any differences in the jobs as immaterial.

Further, because Alliance determined they both violated the same policies, the differences in job titles could mean little, the court observed, noting no evidence Alliance had a general practice of greater leniency to group managers than to acting center directors.

Different reactions? As to Alliance’s assertion that the manager stopped behaving inappropriately after being warned, while the executive didn’t, the court pointed out that the manager, at the conclusion of the investigation, expressed complete disagreement with a draft of the findings. Alliance then revised the report and he admitted he lost his temper with a subordinate.

The executive, however, was never given a draft report or even a warning. Indeed, the executive’s supervisor stated that he simply recommended that the executive avoid a social relationship with the administrative assistant and never mentioned the possibility of termination. And even if it were to characterize the supervisor’s statement as a warning, the court noted that a factfinder could reasonably determine that the executive had not repeated the conduct as the U.K. delegation member did not work for Alliance or report to the executive. Although the executive’s remarks to both women could be viewed as similar, because the delegation member did not work for Alliance, there was no risk of misperception by a subordinate or concern about favoritism toward employees.

Denied misconduct. Alliance next argued that the manager acknowledged his misbehavior while the executive denied any misconduct even after he was fired. But considering only the facts available to Alliance when it decided to fire the executive, the court pointed out it knew only that he had defended his behavior, which was also what the manager had done. Thus, the manager’s eventual acceptance of responsibility did not prevent a finding they were similarly situated.

Limited investigation. Pretext, said the court, could also be inferred from the limited investigation into the executive’s actions, which consisted solely of asking him what he said to the woman, his admission of what he said, and his termination. He was never asked why he considered his comment to the U.K. delegation member appropriate or different from his texts to the administrative assistant. Thus, Alliance never learned he didn’t consider his comments to the second woman as flirtatious and hadn’t perceived his supervisor’s comments as a warning or a recommendation about how to communicate with women working for other companies.

Noting further that the manager had been allowed to submit a written response to a draft of his eventual warning, the court observed that a factfinder could infer discrimination from Alliance’s failure to ask the executive why he considered his behavior appropriate. Because the executive established a fact issue on greater leniency toward the manager and inadequacy in the investigation, the court reversed summary judgment on his race discrimination claim.

Religious discrimination. In affirming summary judgment on his religious discrimination claim, the court noted that he did not identify the religion of any comparators, show past complaints of religious discrimination, or present any evidence of statements or actions suggesting a negative perception of Muslim employees.

Gender discrimination. Finally, as to his gender discrimination claim, the court found that not only did he fail to show Alliance was “one of those unusual employers who discriminates against” males, or provide facts supporting an inference that a woman would not have been terminated, some of his evidence suggested Alliance did not discriminate against men. For example, he presented evidence that Alliance’s leadership was largely male, and his job duties were divided between other men after his termination. Nor did he identify a female employee who engaged in similar conduct who was treated better or show that Alliance would not have fired a woman who had made comparable remarks. Thus, the court affirmed summary judgment against this claim as well.