October 20, 2008Labor & Employment, Litigation Alerts
Evidence That Employer Out To End the "Syrian Regime" Precludes Summary Judgment
Trendwest Resorts, Inc., a company that sells vacation timeshares, recently won a trial court summary judgment in a national origin employment discrimination case, but had it taken away by the Court of Appeal. The opinion by Justice Conrad Rushing found sufficient evidence from which a jury could have decided that the plaintiff, Tamar Mamou, was discriminated against, fired, and defamed because of his Arab origin. Mamou v. Trendwest Resorts, Inc., Santa Clara Super. Court, 165 Cal.App.4th 686 (2008).
Mamou had difficulties inside the company and eventually was terminated. The appellate court painstakingly reviwed the evidence and by the end not only found sufficient evidence to go to the jury, but was extremely dubious, scathing even, of the employer's claims. The facts recited included general disparagement, disparate treatment - including receipt of substantially less in stock options compared to non-Arabs with similar positions - and termination for an "offense" that the appellate court does not appear to take very seriously.
Along the way, the Court of Appeal:
- Rejected the assertion that the employment termination decision was made by upper management so remote from the workplace that they could not have been motivated by bias. The court cited evidence that the managers who had made bigoted statements were instrumental in providing the information that was the basis of the termination.
- Appears to reject the employee's attempted registration of a business in a name his employer considers its intellectual property as just cause for termination. The court disagreed with the characterization of use of a mark and associated goodwill as theft. Also, the Court holds that "an employee does not breach his duty of loyalty by preparing to compete with his employer," so the termination cannot be justified on the ground of disloyalty.
- Found that alleged defamatory statements concerning plaintiff's integrity were not opinion or demonstrably true. They also were not protected as privileged communications between interested parties, as a jury could find that they were motivated by ill will or hatred and thus malicious and outside the privilege.
- Found sufficient prima facie evidence of a discriminatory motive "in evidence that [a manager] referred to 'all those f-----g rag heads,' whom he pledged to 'get rid of,' and . . . alluded to 'busting up' and 'getting rid of” the 'Syrian regime' and the 'Arab regime.' ”
- Perceived a sufficient prima facie case of a retaliatory motive in evidence that a manager was “unhappy” when Mamou initially refused to join him in discriminating against people who were on medical leave, eventually excoriating Mamou for undermining managers' authority; and that the same manager was outraged when Mamou invoked the company's “open door policy” to protest his treatment to upper management.
The court also emphasized that when all is said and done, and the plaintiff has offered evidence of an improper motive and the employer has offered a nondiscriminatory reason for its actions, the question is not whether the employer's reason is a pretext, but whether the evidence as a whole supports a theory that there was a discriminatory or retaliatory animus.
