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A Muslim employee's poor performance—resulting in a performance improvement plan (PIP) and a negative post-PIP evaluation—is not protected by Title VII of the Civil Rights Act of 1964, according to the 5th U.S. Circuit Court of Appeals.
Ammar Alkhawaldeh began working as a functional scientist/functional leader for Dow Chemical Company in January 2008. In October 2009, his supervisor gave him a rating of 1 on his annual review, the lowest possible rating on a scale of 1-5. The supervisor also placed him on a PIP. Alkhawaldeh vigorously protested his rating with Dow, but the rating remained unchanged.
In November 2009, Alkhawaldeh made an internal complaint to human resources that his supervisor and one or more trainers made racially offensive comments to him based on his Arab descent, dark skin and being from Jordan and that his supervisor retaliated against him for complaining about the comments by placing him on a PIP. On April 2, 2010, while still employed with Dow, he filed his first Equal Employment Opportunity Commission (EEOC) charge, alleging discrimination in violation of Title VII. During the summer of 2010, Alkhawaldeh also sent an e-mail to the chairman and CEO of Dow claiming that he was the victim of retaliation.
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On July 6, 2010, Dow transferred Alkhawaldeh to a new group and placed him with a different supervisor. The new supervisor evaluated him for approximately two months before concluding that he was underperforming. Thereafter, consistent with company policy, Dow convened a committee to evaluate Alkhawaldeh's performance. The committee found, among other things, that he was insubordinate, lacked concentration and failed to demonstrate innovation, and did not seem to possess the basic mathematical and engineering skills for his position. On Oct. 30, 2010, Dow terminated him.
On Nov. 17, 2010, Alkhawaldeh filed his second EEOC charge, alleging discrimination and retaliation in violation of Title VII. After an investigation, the EEOC issued a letter of determination finding that Dow retaliated against him in violation of Title VII. Thereafter, he filed a lawsuit against Dow alleging discrimination and retaliation.
The trial court ruled in favor of Dow on Alkhawaldeh's discrimination and retaliation claims, and the 5th Circuit affirmed. A Title VII plaintiff must present evidence that he was treated less favorably than others outside of his protected class, the appeals court stated. Because Alkhawaldeh failed to identify at least one co-worker outside of his protected class who received a 1 rating and completed a PIP but was not fired, he could not prove that he was treated less favorably than other similarly situated employees.
In addition, the 5th Circuit held that no reasonable fact-finder could conclude that Alkhawaldeh would not have been fired "but for" his internal complaints. The appellate court found that he received the 1 rating in October 2009—one month before his alleged internal complaint. The court also found that the negative, post-PIP evaluation by Alkhawaldeh's new supervisor independently justified Dow's decision to terminate him.
Alkhawaldeh v. Dow Chemical Company, 5th Cir., No. 16-20069 (Mar. 15, 2017).
Professional Pointer: If an employee who falls in a protected class complains about unlawful discrimination and/or retaliation, an employer should promptly investigate the allegations, take remedial action as appropriate and consistently follow company policy with respect to taking any adverse employment action based on poor performance.
Jennifer L. Gokenbach is an attorney with Gokenbach Law LLC, the Worklaw® Network member firm in Denver.
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