In a case that highlights the importance of an employer being able to articulate legitimate, non-discriminatory reasons for its adverse employment decisions, El Sayed v. Hilton Hotels Corp., 2010 U.S. App. LEXIS 25716 (2d Cir. Dec. 17, 2010), the United States Court of Appeals for the Second Circuit affirmed the dismissal on summary judgment of a discrimination lawsuit that a former employee filed against Hilton Hotels Corporation ("Hilton"), despite the suspicious timing of the employer's decision to fire him.
Hilton employed plaintiff Walid El Sayed, an Egyptian-American Muslim, as an Assistant Director of Housekeeping for one and a half years. Approximately three weeks after El Sayed complained to his supervisor that a co-worker referred to him as a "Terrorist Muslim Taliban," Hilton terminated his employment. According to Hilton, it did not base its termination decision on El Sayed's complaint about his co-worker, but rather on his omission of portions of his prior employment history from his job application. Hilton contended that it had only discovered the omission shortly before discharging El Sayed. Under Hilton's personnel policies, the omission, which El Sayed admitted when confronted by Hilton, constituted grounds for discharge.
El Sayed filed a lawsuit against Hilton under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), alleging that Hilton had fired him in retaliation for complaining about discrimination. The district court granted summary judgment for Hilton, dismissing El Sayed's lawsuit. In so doing, the district court concluded that, under Title VII, "temporal proximity between a protected activity and an employee's discharge [is] insufficient, standing alone, to establish [that the] employer's proffered reason for discharging [the employee] was merely pretextual." The employee appealed and the Second Circuit affirmed.
According to the Second Circuit, El Sayed arguably established a prima facie case of discrimination "[b]y demonstrating temporal proximity between his complaint and his discharge." The Court explained that establishing a prima facie case created a rebuttable presumption of retaliation. The Court further explained, however, that Hilton articulated a legitimate, non-discriminatory reason for its action - i.e., El Sayed's misrepresentation of his employment history - and El Sayed then failed "to come forward with evidence establishing that it is more likely than not the employer's decision was motivated, at least in part, by an intent to retaliate against him."
The Second Court explained that "[t]he temporal proximity of events may give rise to an inference of retaliation for the purposes of establishing a prima facie case of retaliation under Title VII, but without more, such temporal proximity is insufficient to satisfy [El Sayed's] burden to bring forward some evidence of pretext." Accordingly, the Court affirmed the dismissal of El Sayed's case.
The El Sayed decision demonstrates that, to avoid liability, an employer must be able to articulate clear, non-discriminatory reasons for its adverse employment actions. This principle applies not only during litigation but earlier, in all communications regarding the decision. Thus, for instance, employers should ensure that verbal comments made to an employee who is being discharged, the text of a termination letter, and statements contained in internal memoranda or e-mails regarding a termination are all consistent with the employer's legitimate, non-discriminatory reasons for the action. Click here for a link to the El Sayed decision.