National Origin Discrimination

This article will provide information regarding the elements necessary to establish a national origin case of discrimination as well as the defenses to such a claim of discrimination. In addition, we will discuss what to do if you believe you have been discriminated against based upon your national origin and/or if you have been accused of discriminating against an employee based upon their national origin.

Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against employees based on the national origin of the employee. Title VII prohibits employers from discriminating against employees on the basis of race, color, religion, sex, or national origin. Castaneda v. University of Texas at San Antonio, 2003 WL 1797954, *6 (W.D.Tex.) (W.D.Tex.,2003). See also, Rawat v. Metropolitan Life Ins. Co., 2003 WL 1745589, *4 (N.D.Ill.,2003)(Title VII prohibits, among other things, an employer from discriminating against its employees on the basis of national origin or retaliating against its employees for opposing unlawful employer practices. See 42 U.S.C. § 2000e-2(a); id. § 2000e-3(a)(1994)).

ELEMENTS OF CAUSE OF ACTION

A plaintiff may claim that he/she was discriminated against based on national origin for a variety of reasons. Usually, either the employer took some sort of adverse employment action against the employee that was discriminatory based upon the employee’s national origin or the employer failed to hire or promote the employee based upon national origin.

To establish a prima facie case of national origin discrimination, plaintiffs may rely on either direct or circumstantial evidence. A plaintiff may establish a prima facie case of race/national origin discrimination with either direct or circumstantial evidence. Under Title VII, direct evidence includes any statement or written document showing a discriminatory motive on its face. Portis v. First National Bank of New Albany, MS., 34 F.3d 325, 328-29 (5th Cir.1994). Direct evidence is evidence which, if believed, proves the fact of intentional discrimination without inference or presumption. See id. Plaintiffs may also establish a prima facie case of race/national origin discrimination through the use of circumstantial evidence. See Beyers v. Dallas Morning News, Inc., 209 F.3d 419, 426 (5th Cir.2000). Absent direct evidence, the plaintiff bears the initial burden of establishing a prima facie case of discrimination. See Rios v. Rossotti, 252 F.3d 375, 378 (5th Cir.2001) (internal citations omitted). A prima facie case of discrimination based on race/national origin requires a showing that the employee (1) suffered an adverse employment action, such as loss of a position; (2) was qualified for the position; (3) was within the protected class; and (4) the person selected for the position was not within the protected class. See id. Meeson v. Board of Regents of Texas Southern University, 2003 WL 22391313, *1 (5th Cir.(Tex. (C.A.5,2003). Regarding a plaintiff’s allegations of national origin discrimination, the law requires her to establish the following prima facie elements: (1) that she belongs to a protected group; (2) that she was qualified for her position; (3) that she suffered an adverse employment action or was denied an employment benefit; and (4) that other similarly-situated employees, not in her protected class, were more favorably treated. Castaneda v. University of Texas at San Antonio, 2003 WL 1797954, *6 (W.D.Tex.,2003).

A prima facie case of national origin discrimination is comprised of the following four elements: (1) the employee is a member of a protected class, (2) that he is qualified for the relevant position, (3) that there was an adverse employment action, and (4) that some evidence of record supports the inference of improper motivation. See Hannoon v. Fawn Eng’g Co., 324 F.3d 1041, 1046 (8th Cir.2003). Gonzalez v. City of Minneapolis 267 F.Supp.2d 1004, 1015 (D.Minn.,2003). See also, DiCarlo v. Potter, 358 F.3d 408, *415 (C.A.6 (Ohio),2004)(A plaintiff who alleges discrimination on the basis of national origin and wishes to prove a prima facie case through the use of circumstantial evidence must prove four elements: (1) he or she was a member of a protected class; (2) he or she suffered an adverse employment action; (3) he or she was qualified for the position; and (4) he or she was replaced by someone outside the protected class or was treated differently than similarly-situated, non-protected employees. Talley, 61 F.3d at 1246.).

To establish a prima facie case of discrimination based on race, national origin, or religion, Kwong and Yuan must show that (1) they have suffered an adverse employment action, (2) they belonged to a protected class at the time of the decision, (3) they were qualified for their positions, and (4) they were replaced by someone not within the protected class. See Rios v. Rossotti, 252 F.3d 375, 378 (5th Cir.2001). Pok Seong Kwong v. American Flood Research, Inc., 2004 WL 906173, *3 (N.D.Tex.) (N.D.Tex.,2004).

The proof required at the prima facie stage is minimal. Courts have held that the requirements of proving a prima facie case of discrimination based on national origin are de minimus. In analyzing whether a plaintiff has failed to meet the prima facie showing of discrimination, the courts have reiterated that the burden of making out a prima facie case is not onerous. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); see Rivera-Aponte v. Restaurant Metropol # 3, Inc., 338 F.3d 9, 11 (1st Cir.2003) (not burdensome); Zapata-Matos v. Reckitt & Colman, Inc., 277 F.3d 40, 44 (1st Cir.2002) (low prima facie showing); Villanueva v. Wellesley College, 930 F.2d 124, 127 (1st Cir.1991) (quite easy to meet). Under this standard, Diaz has proffered sufficient prima facie evidence of failure to hire based on racial and/or national origin discrimination. Diaz v. Ashcroft, 324 F.Supp.2d 343, 347 (D.Puerto Rico,2004). See also, Velez v. Project Renewal, 2003 WL 402500, *3 (S.D.N.Y.,2003)) (The proof a plaintiff is required to present at this stage is minimal. Id.; De La Cruz v. New York City Human Res. Admin. Dep’t of Soc. Servs., 82 F.3d 16, 20 (2d Cir.1996).).

ELEMENTS FOR ACTION BASED UPON FAILURE TO PROMOTE

Plaintiffs may also allege that the employer failed to promote them or even to hire them initially due to national origin discrimination. In order to establish a prima facie case of failure to promote discrimination based on national origin, Plaintiff must show that: (1) Plaintiff belongs to a protected class, (2) he qualified for the position in question, (3) he was not hired despite his qualifications; and (4) the job was given to someone outside the protected group with roughly equivalent or lesser qualifications. See Benoit v. Tech. Mfg. Corp., 331 F.3d 166, 173 (1st Cir.2003); Tex. Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 n. 6, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); Keyes v. Sec’y of the Navy, 853 F.2d 1016, 1023 (1st Cir.1988); Acevedo v. Johnson & Johnson-Janssen Pharm., 240 F.Supp.2d 127, 132 (D.P.R.2002). Rios v. Rumsfeld, 323 F.Supp.2d 267, 274 (D.Puerto Rico,2004).

The elements necessary to prove a prima facie cause of action for failure to hire are similar to the failure to promote elements. To establish a prima facie case of discrimination under Title VII, a plaintiff must show that she (1) is a member of a protected class; (2) she applied for and was qualified for an open position; (3) she was rejected; and (4) defendant filled the position with a person not in the plaintiff’s protected class. Bennett v. Roberts, 295 F.3d 687, 694 (7th Cir.2002); Rawat v. Metropolitan Life Ins. Co., 2003 WL 1745589, *10 (N.D.Ill.) (N.D.Ill.,2003).

DIRECT EVIDENCE CASES

Courts allow both direct and indirect evidence of discrimination based on national origin. In direct cases, the McDonnell Douglas three-prong burden-shifting analysis is not used. When proving a claim through the use of direct evidence, a plaintiff does not have to proceed under the McDonnell Douglas burden-shifting framework that applies to circumstantial evidence cases. Christopher v. Stouder Mem’l Hosp., 936 F.2d 870, 879 (6th Cir.1991). [D]irect evidence is evidence which, if believed, requires the conclusion that unlawful discrimination was at least a motivating factor in the employer’s actions. Jacklyn v. Schering-Plough Healthcare Prods. Sales Corp., 176 F.3d 921, 926 (6th Cir.1999). Consistent with this definition, direct evidence of discrimination does not require a factfinder to draw any inferences in order to conclude that the challenged employment action was motivated at least in part by prejudice against members of the protected group. Johnson v. Kroger Co., 319 F.3d 858, 865 (6th Cir.2003). [T]he evidence must establish not only that the plaintiff’s employer was predisposed to discriminate on the basis of [national origin], but also that the employer acted on that predisposition. Hein v. All America Plywood Co., 232 F.3d 482, 488 (6th Cir.2000). Finally, an employee who has presented direct evidence of improper motive does not bear the burden of disproving other possible nonretaliatory reasons for the adverse action. Rather, the burden shifts to the employer to prove by a preponderance of the evidence that it would have made the same decision absent the impermissible motive. Weigel v. Baptist Hosp. of E. Tenn., 302 F.3d 367, 382 (6th Cir.2002). DiCarlo asserts that the Postal Service discriminated against him on the basis of his Italian-American origin. For example, DiCarlo alleges that Bailey called him a dirty wop and complained of there being too many dirty wops working at the postal facility. Bailey denies having ever made such comments. DiCarlo v. Potter, 358 F.3d 408, *415 -416 (C.A.6 (Ohio),2004).

If the person making the alleged discriminatory remark was involved in the decision-making process then remarks made by this person may be relevant as evidence of direct discrimination. Furthermore, although direct evidence generally cannot be based on isolated and ambiguous remarks, Weigel, 302 F.3d at 382, when made by an individual with decision-making authority, such remarks become relevant in determining whether there is enough evidence to establish discrimination. Cf. Carter v. Univ. of Toledo, 349 F.3d 269, 273 (6th Cir.2003)(comments made by individuals who are not involved in the decision-making process regarding the plaintiff’s employment do not constitute direct evidence of discrimination); Hopson v. DaimlerChrysler Corp., 306 F.3d 427, 433 (6th Cir.2002)(comments by manager lacking any involvement in the decision-making process do not constitute direct evidence); Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 354 (6th Cir.1998) (isolated discriminatory remark made by one with no managerial authority over the challenged personnel decisions is not considered indicative of discrimination). DiCarlo v. Potter, 358 F.3d 408, *416 (C.A.6 (Ohio),2004). In a direct evidence case, once the plaintiff has introduced direct evidence of discrimination based upon statements made by individuals with decision-making authority, the plaintiff must then show that the adverse employment action was taken because of the employer’s predisposition to discriminate on the basis of national origin. After concluding that DiCarlo has pointed to direct evidence of Bailey’s discriminatory comments on DiCarlo’s national origin, we must next determine whether Bailey terminated DiCarlo because of his predisposition to discriminate on the basis of national origin. Hein, 232 F.3d at 488. Very few cases exist to provide guidance on direct-evidence analysis in the arena of employment discrimination. However, Hein v. All America Plywood Co., 232 F.3d 482, is helpful to the analysis of causation. DiCarlo v. Potter, 358 F.3d 408, *416 (C.A.6 (Ohio),2004).

Thus, courts will sometimes, although rarely, allow a plaintiff who can establish direct evidence of discrimination to be successful without having to employ the McDonnell Douglass three-prong burden-shifting analysis. We believe the instant case is distinguishable from Hein such that the evidence presented successfully demonstrates a genuine issue of material fact whether Bailey’s decision to terminate DiCarlo was based on his predisposition to discriminate on the basis of national origin. In particular, the fact that the comments were made by Bailey, DiCarlo’s immediate supervisor and a decision-maker, that they specifically negatively and derogatorily referenced DiCarlo’s Italian-American heritage, and that the hate speech occurred three weeks prior to DiCarlo’s termination, all culminate in the conclusion that DiCarlo has presented sufficient evidence of causation to withstand summary judgment. Unlike Hein, the temporal proximity between the discriminatory act and the termination creates a far different scenario, such that causation may be demonstrated with a lesser quantum of evidence than in other cases not involving such a tight timeline of events. Because we conclude that DiCarlo has presented evidence that Bailey had discriminatory animus against DiCarlo and that this predisposition to discriminate played a role in the decision to terminate DiCarlo, the plaintiff has successfully established a prima facie case of discrimination on the basis of national origin through the use of direct evidence. Therefore, we need not decide whether DiCarlo could have proven his case through the use of circumstantial evidence. Accordingly, because DiCarlo has created a genuine issue of material fact as to whether he was terminated on the basis of his national origin, we reverse the district court’s grant of summary judgment on this claim. DiCarlo v. Potter, 358 F.3d 408, *417 (C.A.6 (Ohio),2004).

INDIRECT EVIDENCE CASES

Courts will analyze the type of evidence a plaintiff presents to determine what analysis to use in evaluating the claim of discrimination. The framework for evaluating a Title VII discrimination claim depends on the type of evidence presented in support of the claim. Where the plaintiff relies primarily on circumstantial evidence, courts apply a tripartite analysis as set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under that test, the plaintiff must first establish a prima facie case of discrimination by showing that she was a member of a protected class and suffered an adverse employment action that others outside her class did not suffer. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142-43, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (discussing burden-shifting framework established by McDonnell Douglas and progeny). The defendant may then offer legitimate, nondiscriminatory reasons for the challenged action. Id. (citing *640 Tex. Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)). If the defendant meets this production burden, the plaintiff must prove by the preponderance of the evidence that the nondiscriminatory reasons offered by the defendant are not true and instead were pretext for discrimination. Id. at 143, 120 S.Ct. 2097 (citations omitted). Significantly, [t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff. Id. (quoting Burdine, 450 U.S. at 253, 101 S.Ct. 1089). Mohr v. Dustrol, Inc., 306 F.3d 636, *639 -640 (C.A.8 (Neb.),2002).

Thus, if there is no direct evidence of discrimination, courts allow a plaintiff to establish a national origin discrimination case using indirect evidence. In such a case, courts employ the familiar three-prong McDonnell Douglas burden-shifting analysis. The procedure for demonstrating both race and national origin discrimination follows the familiar McDonnell Douglas order of proof for claims brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1994 & Supp.1999). First, the Plaintiff must establish a prima facie case of discrimination by establishing the following elements: (1) she is a member of a protected class; (2) she was qualified for the position; (3) she suffered an adverse employment action; and (4) the action occurred under circumstances giving rise to an inference of discrimination. See De La Cruz v. New York City Human Resources Admin., 82 F.3d 16, 20 (2d Cir.1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). Generally, a Plaintiff’s burden of establishing a prima facie case in the context of employment discrimination law is minimal. McGuinness v. Lincoln Hall, 263 F.3d 49, 53 (2d Cir.2001).

Once the Plaintiff has established a prima facie case, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for the adverse action. See id. If the employer meets its burden, the Plaintiff then must prove that the articulated justification is in fact a pretext for discrimination or that there is another discriminatory reason. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). Ganthier v. North Shore-Long Island Jewish Health System, Inc., 2004 WL 2651372, *2 (E.D.N.Y.,2004). See also, Rios v. Rumsfeld, 323 F.Supp.2d 267, 274 (D.Puerto Rico,2004)(Once the plaintiff establishes a prima facie case, the presumption arises that the employer unlawfully discriminated against the plaintiff. Che v. Mass. Bay Transp. Auth., 342 F.3d 31, 39 (1st Cir.2003); Vega v. Kodak Caribbean, Ltd., 3 F.3d 476, 478 (1st Cir.1993). The burden of production, not persuasion, then shifts to the employer-defendant who must rebut the inference of discrimination by articulating some legitimate, non-discriminatory reason for the adverse employment action. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817; Feliciano de la Cruz v. El Conquistador Resort, 218 F.3d 1, 5 (1st Cir.2000). If the employer meets this burden, the inference of unlawful discrimination is waived, and the burden shifts back to the plaintiff to show that the employer’s alleged justification is a mere pretext for discrimination. McDonnell Douglas, 411 U.S. at 805, 93 S.Ct. 1817; see Che, 342 F.3d at 39; Feliciano de la Cruz, 218 F.3d at 6. That is, within the Second Circuit (NY, CT, VT), in order to defeat a defendant’s summary judgment motion, a plaintiff must produce evidence to show that: (1) the employer’s given reason for the employment decision is a pretext, and (2) the true reason is discriminatory animus. Feliciano de la Cruz, 218 F.3d at 6. At this point, the presumption of discrimination drops out of the picture, the McDonnell Douglas framework with its presumptions and burdens disappears, and the sole remaining issue is discrimination vel non. Zapata-Matos v. Reckitt & Colman, Inc., 277 F.3d 40, 45 (1st Cir.2002)(internal citations omitted); Mesnick v. Gen. Elec. Co., 950 F.2d 816, 827 (1st cir.1991) (stating that after the employer rebuts the presumption the courts must focus on the ultimate question, scrapping the burden-shifting framework in favor of considering the evidence as a whole. Thus, the critical inquiry becomes whether the aggregate evidence of pretext and retaliatory animus suffices to make out a jury question.); see Garcia v. V. Suarez & Co., 288 F.Supp.2d 148, 154 (holding that at this final stage, the need for the orderly, strict burden-shifting framework is largely obviated and the focus instead becomes whether the evidence, as a whole, creates a triable question as to pretext and discriminatory animus). In determining whether to grant Defendant’s summary judgment motion, we must weigh all the circumstantial evidence of discrimination, including the strength of the plaintiff’s prima facie case and the employer’s proffered reasons for its action, mindful that everything depends on individual facts. Feliciano de la Cruz, 218 F.3d at 7 (quoting Thomas v. Eastman Kodak Co., 183 F.3d 38, 57 (1st Cir.1999)).

MIXED MOTIVE CASES

Sometimes a plaintiff does not have direct or circumstantial evidence of discrimination but can show through direct evidence that discrimination was a motivating factor in the employment decision. Such a case is known as a mixed motive case meaning that discrimination together with other lawful factors both contributed to the adverse employment decision. In some situations, however, a plaintiff can produce direct evidence that an illegal criterion was a motivating factor in the disputed employment decision. See 42 U.S.C. § 2000e-2(m) ([A]n unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.). In those cases, the plaintiff is relieved of the ultimate burden of persuasion, and the so-called mixed-motive analysis is applied. See generally Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989); Gagnon v. Sprint Corp., 284 F.3d 839, 847-49 (8th Cir.), petition for cert. filed, 71 U.S.L.W. 3162 (U.S. Aug. 19, 2002) (No. 02-273). Under the mixed motive analysis, once the plaintiff persuades a factfinder that, more likely than not, discrimination was a motivating part of an employment decision, the burden shifts to the employer to prove that the employment decision would nevertheless have been made for legitimate, nondiscriminatory reasons. Yates v. McDonnell Douglas, 255 F.3d 546, 548 (8th Cir.2001) (quoting Price Waterhouse, 490 U.S. at 254, 109 S.Ct. 1775). Such a showing will preclude an award of damages although declaratory judgment, injunctive relief, and attorney’s fees would still be possible. See 42 U.S.C. § 2000e-5(g)(2)(A) & (B); Gagnon, 284 F.3d at 847-48; Browning v. President Riverboat Casino-Missouri, 139 F.3d 631, 634 (8th Cir.1998). Mohr v. Dustrol, Inc., 306 F.3d 636, *640 (C.A.8 (Neb.),2002).

What type of direct evidence of discrimination as a motivating factor is sufficient to establish a mixed motive case? Direct evidence is that which demonstrates a specific link between the alleged discriminatory animus and the challenged [employment] decision, sufficient to support a finding by a reasonable fact finder that an illegitimate criterion actually motivated [the employer’s] decision’ to take the adverse employment action. Deneen v. Northwest Airlines, Inc., 132 F.3d 431, 436 (8th Cir.1998) (quoting Thomas v. First Nat’l Bank of Wynne, 111 F.3d 64, 66 (8th Cir.1997)). Not every prejudiced remark made at work supports an inference of discrimination. See Price Waterhouse, 490 U.S. at 277, 109 S.Ct. 1775 (O’Connor, J., concurring). Thus, [w]e have carefully distinguished between comments which demonstrate a discriminatory animus in the decisional process’ or *641 those uttered by individuals closely involved in employment decisions, from stray remarks in the workplace, statements by non-decision makers, or statements by decisionmakers unrelated to the decisional process. Rivers-Frison v. Southeast MC. Cmty. Treatment Ctr., 133 F.3d 616, 619 (8th Cir.1998) (internal quotations omitted); see also Kriss v. Sprint Communications Co., 58 F.3d 1276, 1282 (8th Cir.1995) (requiring evidence of conduct or statements by persons involved in the decision-making process that may be viewed as directly reflecting the alleged discriminatory attitude, sufficient to permit the factfinder to find that that attitude was more likely than not a motivating factor in the employer’s decision).

For example, it is undisputed that Heald and Baehr were the Dustrol employees officially responsible for hiring and crew assignments. However, the direct evidence inquiry is not limited to those formally entrusted with decision-making duties. If a reasonable factfinder could conclude that Sanchez was closely involved in the decision not to rehire Mohr for the heating crew, then his alleged comments are relevant to the direct evidence analysis. While Dustrol states that Sanchez does not make hiring decisions, excerpts from both Heald’s and Baehr’s affidavits attest to Sanchez’s input where Mohr was concerned. These excerpts support a finding that Sanchez played a pivotal role in Mohr’s treatment by Dustrol. A reasonable inference arises that Mohr was not initially hired in March because Sanchez did not want her on the heating crew and there was no other work available. Indeed, Heald’s and Baehr’s statements leave little room for any other conclusion than that they deferred to Sanchez in making employment decisions regarding Mohr. See Gagnon, 284 F.3d at 848 (Courts look beyond the moment a decision was made in order to determine whether statements or comments made by other managerial employees played a role in the ultimate decision-making process.). Given this, Dustrol cannot assert Heald’s and Baehr’s lack of knowledge regarding Sanchez’s alleged discriminatory animus to dispositively insulate itself from liability. See id. at 848-49 (reversing summary judgment to employer after finding direct evidence of discrimination, and concluding, While [the COO’s] decision may have ultimately been free of any discriminatory animus, we cannot sterilize a seemingly objective decision when earlier discriminatory decisions lead to the adverse employment action.); Yates, 255 F.3d at 549 (reaffirming rule set forth in Stacks v. Southwestern Bell Yellow Pages, Inc., 27 F.3d 1316, 1323 (8th Cir.1994), that [a]n employer cannot escape responsibility for discrimination … when the facts on which the reviewers rely have been filtered by a manager determined to purge the labor force of [a protected class]); Kientzy v. McDonnell Douglas Corp., 990 F.2d 1051, 1057 (8th Cir.1993) (discussing cases from other circuits for same proposition). Thus, for purposes of summary judgment review, Sanchez’s involvement in the decision-making process and his alleged derogatory comments about the workplace capabilities of women and non-Hispanics sufficiently establish the specific link between the challenged employment action and the alleged animus. Mohr v. Dustrol, Inc., 306 F.3d 636, *640 -642 (C.A.8 (Neb.),2002).

Once there is sufficient evidence to allow a court to employ a mixed motive analysis, the courts will apply a mixed motive analysis. This analysis requires the defendant to demonstrate that absent the illegal motivating factor, the defendant would still have taken the same action. Having concluded that Mohr is entitled to the mixed-motive analysis, our review turns to whether Dustrol has proven that absent consideration of any illegal criterion it would have taken the same employment action. In other words, Dustrol must show that no genuine issue remains as to its nondiscriminatory reason for failing to rehire Mohr for the heating crew when she applied in March 1999. Dustrol’s position is set out in Baehr’s affidavit, in paragraph seven, in which he states: All of the flaggers hired prior to Mohr in 1999 had completed their application forms prior to the date Mohr submitted her application. No flagger was hired by Dustrol before Mohr, who had applied after Mohr. (emphasis in original). Mohr v. Dustrol, Inc., 306 F.3d 636, *642 (C.A.8 (Neb.),2002).

WHAT CONSTITUTES AN ADVERSE EMPLOYMENT ACTION?

In order to establish a prima facie case of discrimination, a plaintiff must prove as a third step in demonstrating a prima facie case, that the plaintiff has suffered an adverse employment action. Adverse employment actions must be something significant and usually have monetary consequences. The plaintiff may disagree with the defendant’s decision to give her written warnings based on her work performance, and she may perceive these warnings as unfair, but they do not rise to the level of an adverse employment action actionable under Title VII. As I stated earlier in this Report, to prevail on a discrimination claim in the Fifth Circuit Court of Appeals, the plaintiff must establish the third prong of her prima facie case, that is, that an adverse employment action was taken against her. An action that affects the compensation, terms, conditions, or privileges of employment is generally referred to as an adverse employment action,’ and is a required element of the plaintiff’s prima facie case of employment discrimination. In this circuit, only ultimate employment decisions, not interlocutory or mediate’ decisions that might lead to ultimate decisions, qualify as adverse employment actions. Employment actions classified as adverse include decisions such as hiring, granting leave, discharging, promoting, or compensating. Significantly, employment actions are adverse only where pay, benefits, or level of responsibility are affected. In that regard, Section 2000e-2 of the Act defines unlawful employment practices as those that: limit, segregate, or classify employees or applicants for employment in a way that would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.
Castaneda v. University of Texas at San Antonio, 2003 WL 1797954, *9 (W.D.Tex.) (W.D.Tex.,2003).

Thus, courts have held that minor employment actions do not constitute adverse employment actions that would be sufficient to satisfy the third prong of a plaintiff’s national origin discrimination action pursuant to Title VII. According to, employment actions having only a tangential effect on an ultimate decision-such as a missed pay increase, verbal threats of being fired, reprimands, an employer’s failure to resolve internal grievances, close monitoring of an employee’s work and conduct, failure to heed an employee’s input, or failing to permit the employee to represent the employer at business functions are not adverse employment decisions as the term has been interpreted by the Fifth Circuit. Castaneda v. University of Texas at San Antonio, 2003 WL 1797954, *9 (W.D.Tex.) (W.D.Tex.,2003).

EMPLOYER DEFENSES

What are some of the legitimate non-discriminatory reasons that an employer might be able to use to defend an adverse employment action it has taken that the plaintiff alleges to be discriminatory based upon national origin? Employers usually allege that the plaintiff has violated its attendance and/or tardiness policies and/or has failed to perform his/her duties in a satisfactory manner. Assuming, arguendo, that the plaintiff has established her prima facie case of national origin discrimination, a defendant has produced legitimate, non-discriminatory business reasons for the disciplinary actions it took toward the plaintiff. As demonstrated in Exhibits 1-6 submitted in support of the defendant’s motion and the defendant’s Statement of Relevant Facts incorporated in this Report in full, the defendant’s disciplinary actions were meant to enforce its policies regarding employee conduct and had nothing to do with the plaintiff’s national origin. Plaintiff’s acts of repeated insubordination (even after a long period of disciplinary counseling) supported the defendant’s decision to terminate her employment, and indeed constituted legitimate non-discriminatory reasons for her termination. Moreover, and as indicated earlier, the plaintiff failed to present evidence that other employees, not in her protected class (i.e., not Mexican-born), with similar acts of insubordination, remained employed with the defendant. Castaneda v. University of Texas at San Antonio, 2003 WL 1797954, *11 (W.D.Tex.,2003).

WHAT IS THE DEFINITION OF NATIONAL ORIGIN?

One issue that arises is that nowhere in the law is national origin defined. Nowhere does Congress or the agency charged with administering Title VII, the Equal Employment Opportunity Commission (EEOC), define nation origin. Kanaji v. Children’s Hosp. of Philadelphia, 276 F.Supp.2d 399, 401 (E.D.Pa.,2003).

This issue arises when a defendant alleges that the plaintiff’s allegations do not contain mention of a particular country of origin and therefore cannot constitute national origin discrimination. In such a case the defendant argues that because the complaint only relies on the plaintiff’s racial characteristics, i.e. being of direct African descent, it cannot support a national origin claim. Such an argument was raised in Espinoza v. Farah Mfg. Co., Inc. 94 S. Ct. 334 (1973). The defendant in Kanaji v. Children’s Hsop. Of Philadelphia, 276 F. Supp. 2d 399 (E.D.Pa. 2003) relied on the Espinoza decision in alleging that the case was not a national origin case because the plaintiff did not mention a particular country. Citing this language, Defendant contends that Plaintiff cannot be a member of a national origin protected class because his Amended Complaint relies only on his racial characteristics, i.e., being of direct African descent, and not his particular country or nation of origin. The defendant’s reliance on Espinoza is misplaced. In fact, the decision actually supports a broader reading of national origin than that advanced by Defendant. First, the language quoted above is dicta and does not represent the Supreme Court’s holding. The issue before the Espinoza court was whether an employer discriminates on the basis of national origin under Title VII when it utilizes a hiring policy that excludes aliens, i.e., individuals who are not citizens of the United States. Id. at 87, 94 S.Ct. 334. The Supreme Court held that it did not. In reaching this decision, the Supreme Court compared and contrasted the permissible practice of requiring citizenship as a condition of employment, with other practices that would violate Title VII’s proscription against national origin discrimination. The plaintiff in Espinoza was a Mexican citizen, and the Supreme Court noted that there was no evidence that the employer’s policy had the purpose or effect of discriminating against persons of Mexican national origin. By way of example, it distinguished the case before it from one where the company refused to hire aliens of Mexican or Spanish-speaking background while hiring those of other national origins. Id. at 92 n. 5, 94 S.Ct. 334. Later in the opinion, the Supreme Court provided a second example of an illegal employment practice: hiring aliens of Anglo-Saxon background but refusing to hire those of Mexican or Spanish ancestry. Id. at 95, 94 S.Ct. 334. By suggesting that a refusal to hire people of Spanish-speaking background’ would constitute discrimination on the basis of national origin, or that insisting on an Anglo-Saxon background’ as a condition of employment is also prohibited, it is clear that the Supreme Court would not require that one’s national origin be linked directly to a specific country or nation. Rather, this implies that the term national origin must embrace a broader class of people and that the term is better understood by reference to certain traits or characteristics that can be linked to one’s place of origin, as opposed to a specific country or nation. In finding a lack of evidence of discrimination on the basis of national origin, the Supreme Court found it significant that the worker hired in place of the plaintiff in Espinoza was a citizen with a Spanish surname. Id. at 93, 94 S.Ct. 334. This, too, suggests that national origin should be interpreted broadly, and should embrace groups of people not necessarily identified with a particular nation. Kanaji v. Children’s Hsop. Of Philadelphia, 276 F. Supp. 2d 399 (E.D.Pa. 2003).

The Supreme Court in Espinoza was also influenced by the fact that the EEOC guidelines also supported this because they defined national origin very broadly. Guidelines issued by the EEOC also support this conclusion, and the Court is mindful that such guidelines are usually entitled to great deference as long as they are consistent with congressional intent. Espinoza, 94 S.Ct. at 94. The EEOC has not defined national origin, but it has defined national origin discrimination. The Commission defines national origin discrimination broadly as including, but not limited to, the denial of equal employment opportunity because of an individual’s, or his or her ancestor’s, place of origin; or because an individual has the physical, cultural, or linguistic characteristics of a national origin group. 29 C.F.R. § 1606.1 (emphasis added). There are a few salient points that may be taken from this definition. First, the guideline encourages a broad interpretation of this provision, not the narrow interpretation urged by Defendant. Second, it refers to discrimination because of a connection to a place of origin, not a country of origin. In fact, the regulation was amended in 1980 to replace the country of origin with the place of origin in order to discourage a reference to a sovereign nation. See Guidelines on Discrimination Because of National Origin, 45 Fed. Reg. 85632, 85633 (Dec. 29, 1980) (codified at 29 C.F.R. pt. 1606). These considerations lend strong support to the notion that one’s national origin need not be linked directly to a particular nation. Moreover, the guideline directs decision-makers to scrutinize situations where an individual has certain traits or characteristics of a national origin group, which the Court believes is consistent with the reality of this form of discrimination. In support of this amendment, the Federal Register cites Roach v. Dresser Industrial Valve and Instrument Division, 494 F.Supp.215 (D.La.1980), where the court rejected an argument that Cajuns cannot assert national origin claims because their place of origin, Acadia, is not and never was a country. The Roach court made a cogent observation that mirrors this Court’s understanding of Title VII: Distinctions between citizens solely because of their ancestors are odious to a free people whose institutions are founded upon the doctrine of equality, and we decline to accept the argument that litigation of this sort should be governed by the principles of sovereignty. Id. at 218.

The Espinoza court made clear that it is more the different appearance of the person and the association of that appearance with a non-American origin that is relevant rather than the mention of a particular country. Differences in dress, language, accent, and customs associated with a non-American origin are more likely to elicit prejudicial attitudes than the fact of the origin itself. An individual’s speech, dress, and mannerisms are his present; his ancestral origin is his past. Only through the medium of characteristics does ancestral origin become apparent in the present. Stephen M. Cutler, Note, A Trait-Based Approach to National Origin Claims Under Title VII, 94 Yale L.J. 1164, 1165 & n.5 (1985). The Third Circuit has also recognized that discrimination generally is triggered by a person’s physical or behavioral traits that reflect his or her membership in a protected class: We think unlawful discrimination must be based on [the plaintiff’s] objective appearance to others, not his subjective feelings about his own ethnicity. Discrimination stems from a reliance on immaterial outward appearances that stereotype an individual with imagined, usually undesirable, characteristics thought to be common to members of the group that shares these superficial traits. It results in a stubborn refusal to judge a person on his merits as a human being. Our various statutes against discrimination express the policy that this refusal to judge people who belong to various, particularly disadvantaged, groups is too costly to be tolerated in a society committed to equal individual liberty and opportunity. Bennun v. Rutgers State Univ., 941 F.2d 154, 173 (3d Cir.1991). Kanaji v. Children’s Hosp. of Philadelphia, 276 F.Supp.2d 399, 401-403 (E.D.Pa.,2003).

HARASSMENT BASED ON NATIONAL ORIGIN

In addition to claiming that a plaintiff has been discriminated against based upon his/her national origin, a plaintiff may also allege that he/she has been subjected to workplace harassment based upon his/her national origin. To prove a hostile work environment claim, the plaintiff must demonstrate that the discriminatory conduct was severe or pervasive enough to create an objectively hostile or abusive work environment. In order to survive summary judgment, a plaintiff must show that under the totality of the circumstances (1) the harassment was pervasive or severe enough to alter the terms, conditions, or privilege of employment, and (2) the harassment was racial [or based on national origin] or stemmed from racial [or national origin] animus.’ In evaluating the first prong of a hostile work environment claim, the court must look at all the circumstances including the frequency of the discriminatory conduct; its severity; whether it was physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interfered with an employee’s work performance. Castaneda v. University of Texas at San Antonio, 2003 WL 1797954, *12 .D.Tex.) (W.D.Tex.,2003). See also, Hadad v. American Airlines, Inc. 2003 WL 292170, *5 (N.D.Tex.,2003)(To establish a prima facie case of a hostile work environment, Hadad must demonstrate (1) his membership in a protected class, (2) he was subject to racial or national origin harassment, (3) the harassment was based on race or national origin, (4) the harassment affected a term, condition, or privilege of his employment, and (5) American knew or should have known about the harassment, but failed to take prompt remedial action. See Nash v. Electrospace Sys., Inc., 9 F.3d 401, 403 (5th Cir.1993) (per curiam) (addressing prima facie case of sexual harassment). [W]here the harassment is allegedly committed by a supervisor with immediate (or successively higher) authority over the harassment victim, the plaintiff employee needs to satisfy only the first four of the elements listed above. Celestine v. Petroleos de Venezuella SA, 266 F.3d 343, 353 (5th Cir.2001). He must show (1) discriminatory intimidation, ridicule, and insults, that are (2) sufficiently severe or pervasive that they (3) alter the conditions of employment and (4) create an abusive working environment. DeAngelis v. El Paso Mun. Police Officers Ass’n, 51 F.3d 591, 594 (5th Cir.1995) (sex discrimination case) (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)).

To prove a case of harassment based on national origin the statements must be more than mere utterances or isolated incidents. The employee must prove more than a few isolated incidents of racial enmity. McCray v. DPC Indus., Inc., 942 F.Supp. 288, 293 (E.D.Tex.1996) (quoting Hicks v. Gates Rubber Co., 833 F.2d 1406, 1412 (10th Cir.1987)). The mere utterance of an ethnic or racial epithet that engenders offensive feelings in an employee does not affect the conditions of employment to a sufficiently significant degree to violate Title VII. Id. (citing Rogers v. EEOC, 454 F.2d 234, 238 (5th Cir.1971)). Additionally, racial comments that are sporadic or part of casual conversation do not violate Title VII. Id. (citing Hicks, 833 F.2d at 1412). Verbal ridicule, intimidation, or insults qualify as racially discriminatory when severe and pervasive enough to alter the terms and conditions of employment and create an abusive working environment. See Harris, 510 U.S. at 21 (sex discrimination case). To determine whether a working environment is abusive, the court must examine the totality of the circumstances, focusing on factors such as the frequency of the conduct, the severity of the conduct, the degree to which the conduct is physically threatening or humiliating, and the degree to which the conduct unreasonably interferes with an employee’s work performance. Weller v. Citation Oil & Gas Corp., 84 F.3d 191, 194 (5th Cir.1996). Hadad v. American Airlines, Inc., 2003 WL 292170, *5 (N.D.Tex.,2003).

HOW NATIONAL ORIGIN DISCRIMINATION RELATES TO YOU PERSONALLY

1.      If you believe that you have been discriminated against based on your national origin. If you believe that your employer has discriminated against you based on your national origin, you should contact Mark Carey at 203-255-4150 or info@capclaw.com. If you do not want to do this, you should at the very least attempt to preserve your legal rights by putting your claim in writing addressed to your company’s human resources or legal department and by contacting the U.S. Equal Employment Opportunity Commission (EEOC) at www.eeoc.gov. The EEOC can explain how to file a charge of discrimination with the agency against the employer. The company is required to conduct an investigation and will provide you with the results. Remember that you are protected once you have filed this claim and any adverse employment actions taken against you once you have filed a complaint could be considered to be retaliation. You should keep any evidence that you have of actions that you believe to be retaliatory based upon your having filed a complaint. See section on Retaliation in employment discrimination actions infra.

2.       If you have been accused of discriminating against an employee based on the employee’s national origin. Usually, your company’s human resource or legal department will conduct an investigation into the employee’s claim and provide the employee and you with the results of the investigation. The company may offer to represent both you and the company. You should keep in mind that your and the company’s interests may diverge at some point along the way so it may be best for you to retain your own legal counsel from the beginning. Also, although Title VII does not provide for individual liability for managers in these situations, some state human rights laws (such as New York’s) may provide for individual liability. Individual liability is sometimes possible, however, under New York’s Human Rights Law. Gregory v. Daly, 243 F.3d 687, 689 n. 1 (2d Cir.2001); Tomka, 66 F.3d at 1317.’ Mandell v. County of Suffolk,316 F.3d 368, 377 (2nd Cir.,2003).

Since you may have some exposure it may be worth consulting with legal counsel regarding the alleged claim against you. For more information please contact  Carey & Associates PC  at (203) 255-4150 or email info@capclaw.com.

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