Monica Guessous v. Fairview Property Investments

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1055
MONICA GUESSOUS,
Plaintiff - Appellant,
v.
FAIRVIEW PROPERTY INVESTMENTS, LLC,
Defendant - Appellee.
-----------------------------------
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Amicus Supporting Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (1:14-cv-00224-GBL-IDD)
Argued: December 9, 2015 Decided: July 6, 2016
Before TRAXLER, Chief Judge, and GREGORY and DIAZ, Circuit
Judges.
Vacated and remanded by published opinion. Judge Gregory wrote
the opinion, in which Chief Judge Traxler and Judge Diaz joined.
ARGUED: Arinderjit Dhali, DHALI PLLC, Washington, D.C., for
Appellant. Hans Paul Riede, ODIN, FELDMAN & PITTLEMAN, P.C.,
Reston, Virginia, for Appellee. Gail S. Coleman, U.S. EQUAL
EMPLOYMENT OPPORTUNITY COMMISSION, Washington, D.C., for
Amicus Curiae. ON BRIEF: Lauren Friend McKelvey, ODIN,
FELDMAN & PITTLEMAN, P.C., Reston, Virginia, for Appellee.
P. David Lopez, General Counsel, Jennifer S. Goldstein,
Associate General Counsel, Lorraine C. Davis, Assistant General
Counsel, Office of General Counsel, U.S. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION, Washington, D.C., for Amicus Curiae.
2
GREGORY, Circuit Judge:
On February 28, 2014, Monica Guessous filed suit against
Fairview Property Investments, LLC (“Fairview”). She alleged
six claims in her complaint: pursuant to 42 U.S.C. § 1981,
Guessous asserted claims for race discrimination (“Count I”),
hostile work environment (“Count II”), and retaliation (“Count
III”); and pursuant to Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000(e) et seq., she asserted claims for
discrimination based on religion, national origin, and pregnancy
(“Count IV”), hostile work environment (“Count V”), and
retaliation (“Count VI”). On December 16, 2014, the district
court granted summary judgment for Fairview on all six counts.
For the reasons that follow, we vacate the order granting
summary judgment on all counts and remand for further
proceedings.
I.
We recite the facts drawing reasonable inferences in favor
of the non-movant, Monica Guessous. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986).
A.
Fairview manages several real estate properties and engages
in real estate leases and sales. Guessous is an Arab-American
Muslim woman from Morocco who worked for Fairview from February
3
2007 until March 2013 when she was terminated from her position
as a bookkeeping assistant. She was terminated by her direct
supervisor, Greg Washenko, who became Fairview’s Chief Financial
Officer (“CFO”) in October 2008. Prior to Washenko’s arrival,
Guessous had been supervised by Peter Arey who was Fairview’s
Vice President at that time.
In deposition testimony, Guessous recounted numerous
allegations of mistreatment by Washenko during the final four-
and-a-half years of her employment at Fairview. 1 Guessous and
Washenko met for the first time at a meet-and-greet event held
in October 2008, shortly after Washenko was hired. At that
first meeting, Washenko asked Guessous where she was from and,
when she replied that she was Middle Eastern, he said that in a
previous job he had worked with “a bunch of Middle Easterners
and they are a bunch of crooks, [who] will stop at nothing to
screw you.” J.A. 207-08. 2 From that point forward, Washenko
exhibited a habit of discussing Moroccans, Muslims, and Middle
Easterners in disparaging and offensive ways. For example, in
January 2010, after reading news reports about Islamic
1 Unless noted otherwise, quotations of conversations
between Guessous and Washenko come from Guessous’ testimony.
They are not direct quotes from Washenko, but Guessous’
recreation of those past statements.
2 References to “J.A.” refer to the Joint Appendix submitted
by the parties to this appeal.
4
terrorism, Washenko came out of his office and walked to
Guessous’ desk to ask her, “Why do Muslims hate America?” J.A.
216. Guessous replied that she was Muslim and did not hate
America. She further stated that “Muslims are not terrorists,”
to which Washenko responded, “Yeah, sure. Like my buddy
says . . . not all Muslims are terrorists, but most are.” J.A.
216. Guessous testified that Washenko’s body language during
that conversation made her feel “cornered” and “intimidated,” in
particular because he stood over her while she sat at her desk.
On another occasion in May 2010, 3 following a series of
Hamas attacks on Israel, Washenko again left his office to
approach Guessous. When he said, “I need your intake on this,”
Guessous believed he was bringing her something to work on.
Instead, Washenko proceeded to tell her, “I could never
understand this whole suicide bomber thing. . . . These poor
Israelis are being bombed every day by Muslim Palestinian
terrorists.” J.A. 217. Guessous attempted to explain that
“[s]uicide is prohibited in the Koran” and that it “specifically
says that it does not condone killing innocents.” J.A. 217.
She also told him she was not Palestinian and that she “ha[d] no
3The district court appears to have committed a
typographical error in citing this event as occurring in May
2012. Guessous v. Fairview Prop. Investments, LLC, No. 1:14-CV-
00224-GBLIDD, 2014 WL 7238993, at *3 (E.D. Va. Dec. 16, 2014).
Deposition testimony and Guessous’ complaint both indicate that
it occurred in 2010.
5
business speaking about” the issue. J.A. 217. On yet another
occasion, in February 2011 during the Arab Spring, Washenko
again left his office to approach Guessous at her desk and ask,
“What’s up with Egypt and why are the Muslims killing people?”
J.A. 239. Guessous testified that by this time she had become
frustrated with these kinds of inquiries and tried to explain to
him that she was not Egyptian and had no particular insight into
the uprising.
In fact, Washenko consistently conflated Guessous’ identity
as a Moroccan Muslim with other Middle Eastern identities,
blurring the lines between race, ethnicity, national origin, and
religion. For example, in late 2011, Guessous was called to the
basement of one of Fairview’s buildings where a restaurant was
located. She was then asked to act as a translator for one of
the restaurant’s employees who was a Farsi-speaking Persian
Iranian. When Guessous told Washenko that she did not speak
Farsi, he replied, “‘So you don’t speak Iranian? Shouldn’t
there be some secret [] language that you all understand?’”
Guessous v. Fairview Prop. Investments, LLC, No. 1:14-CV-00224-
GBLIDD, 2014 WL 7238993, at *5 (E.D. Va. Dec. 16, 2014). 4
4
The word “Muslim” has been excised from our quotation
where indicated. Although the district court relied on
Guessous’ own complaint, in her deposition testimony she did not
include the word “Muslim” in her quotation of Washenko. J.A.
246.
6
Washenko continued to direct these kinds of inquiries at
Guessous throughout 2011. In August or September of that year,
as Muamar Gaddafi’s rule in Libya was coming to an end, Washenko
asked Guessous to explain the situation in that country to him.
Again, she responded that she was not Libyan and did not have an
interest in events going on there. Around this time, Guessous
sent an email to her brother-in-law, a police officer,
explaining some of the issues she was having with Washenko and
asking for his advice. Among other complaints, she said,
I am sick and tired of been the 411 for issues
relating to a Muslim terrorist and or a Islamic
country’s national conflicts and or cultural issues or
weirdness that he is trying to find out about. I feel
targeted for my believes and my ethnicity and culture
and for all the year I have been in the good all
united stated of America I have never felt so inferior
to anyone as I am feeling at this point.
J.A. 329 (errors in original).
But being dragged into uncomfortable, and often offensive,
discussions on current events was hardly the only behavior to
which Guessous objected. Much of Washenko’s conduct was more
personal in nature. For example, beginning in early 2010,
Washenko spent several months referring to Guessous by her
Moroccan name, “Mounia,” instead of her chosen Americanized
name, “Monica.” Guessous, 2014 WL 7238993, at *3. While
Fairview asserts that Washenko desisted at Guessous’ request,
Guessous herself stated in the same 2011 email to her brother-
7
in-law that she had “struggled for quite some time to have him
call me Monica instead of Mounia,” J.A. 328, and noted in her
complaint that Washenko only stopped “[a]fter 2-3 months of
repeated requests and protests,” J.A. 16. In September of that
same year, Guessous wished Washenko a happy birthday, which
happens to fall on September 11th. Washenko responded to his
sole Muslim Arab employee’s well wishes by saying that each year
on his birthday he was “reminded of the terrorist attacks by the
Muslims” and then walking out of his office. J.A. 235.
Another of their conversations in 2010 turned personal
after Washenko initiated a discussion on the differences between
Christianity and Islam. First, Washenko asked Guessous to
describe Islam to him, and in turn he described Christianity to
her. Guessous then began to explain that Judaism, Christianity,
and Islam are all Abrahamic religions, that their adherents
worship the same God, and that Islam treats Jesus as a prophet
who was raised to Heaven by God and who will return to Earth.
Although initially uncomfortable with the conversation, as she
explained Islam to Washenko, emphasizing the similarities
between their faiths, Guessous testified that she began to feel
“happy because I was like I’m doing something good.” J.A. 225.
But Washenko was apparently incensed at the suggestion, saying,
“‘No Monica! We are not the same, you might think we are, but
we are not! We do not believe in the same God!’ and then
8
storm[ing] away.” Guessous, 2014 WL 7238993, at *3. Guessous
was hurt by the reaction, recalling in testimony that the
statement, “We’re not the same . . . . made me feel like I’m not
even a human being.” J.A. 226.
Washenko’s personal and offensive comments continued into
2011 and 2012. In the fall of 2011, Washenko was shopping for a
new car for his son. Guessous suggested he purchase a
Volkswagen because her mother drove one and it had been
reliable. Washenko replied, “[T]hat car must have taken a lot
of beating from a Moroccan driver.” J.A. 246. Guessous
testified that she was deeply offended and “couldn’t
believe . . . he [was] insulting my own mother.” J.A. 246.
Also in late 2011, Washenko engaged in an extended prank,
telling staff members over the course of two weeks that Guessous
had tried to poison him. In fact, Guessous had shared some Taco
Bell with Washenko at lunch one day, and that evening Washenko
had gone to the emergency room with abdominal pain. Although he
was unable to get a diagnosis at the hospital, Washenko told
Guessous, and apparently others, that the doctor had asked him
who gave him the food, that Washenko had replied “my Muslim
employee,” and that the doctor then responded, “Well she’s
obviously trying to poison you or kill you.” J.A. 249.
Watching Washenko tell the story repeatedly around the office,
Guessous said she “just felt like a terrorist.” J.A. 249-50.
9
One of the most offensive episodes began differently than
most of the encounters described in Guessous’ testimony. While
these conversations were typically initiated by Washenko, in
this case Guessous decided to try to “educate” her boss about
her culture in order to frame it in a more positive light. In
late 2011 or early 2012, Guessous was sent photos from a friend
who had moved to Dubai. When she received the pictures of the
clean and modern city she wanted to show Washenko the images to
demonstrate “we’re not a bunch of like morons or idiots.” J.A.
247. Rather than being impressed as Guessous had hoped,
Washenko told her that he had a friend who lived in Dubai for a
year and had hated the experience, and that this friend had told
him, “Despite all the buildings and modern [sic], they are just
a bunch of camel people.” J.A. 247.
Most of Guessous’ remaining allegations concern what she
characterized in her complaint and testimony as Washenko’s
intrusive and overbearing approach to managing her as his
subordinate employee. After assuming the position of CFO,
Washenko monitored Guessos directly. Guessous testified that
Washenko would often leave his office to stand behind her desk
and inquire what she was working on. These inquiries were
repeated as many as forty times in a single day. Guessous felt
that Washenko would sometimes badger her in this manner, wait
for her to become irritated or overwhelmed, and then accuse her
10
of being overly upset. On at least one occasion, Washenko
followed Guessous into the copy room, asked her what she was
working on in there, and then told her, “I’m watching you.”
J.A. 215-16. This conduct was specifically aimed at Guessous
and not at other employees. In fact, other employees joked
about how, even when Washenko was out of the office, he would
constantly call Guessous to ask her what she was doing and to
tell her not to leave early.
Washenko once asked Guessous just five minutes after she’d
been given an assignment whether it was done. When she said it
was not, Washenko looked at his watch, snapped his fingers, and
said, “[T]his is not Morrocan time.” J.A. 238. This close
supervision, combined with the troubling statements Washenko had
made about Muslims’, Arabs’, and Moroccans’ trustworthiness and
work ethic, made Guessous feel “like maybe I’m a crook. Like he
made me rethink myself. . . . So now I felt like he is not
seeing me as me and what I can bring to the table and my work.
Now he labeled me as this Middle Easterner.” J.A. 212.
In the winter of late 2011 or early 2012, another incident
occurred which reinforced this link in Guessous’ mind. Washenko
called Guessous into his office in what she described as a
secretive manner, asking her to close the door behind her. He
proceeded to tell Guessous that Rashid Lakroun, a Moroccan
restaurant manager in one of Farivew’s buildings, had been
11
fired. Guessous was confused as to why she would be informed
since she was not involved with the restaurant and had only seen
Lakroun occasionally when he came into Fairview’s offices. As
she expressed this confusion, Washenko told her, “I just thought
you should know since you are both Moroccan,” adding, “He’s a
very bad guy, Monica . . . . Monica, Monica, [h]e’s a very bad
guy.” J.A. 250–51. This conversation left Guessous feeling
targeted, and she testified that “after I got fired, when I
left, I felt like I was [Lakroun]. Because now [Washenko]’s
probably calling somebody in his office telling them that I was
bad.” J.A. 251.
B.
In late 2011, Guessous became pregnant. During most of
2012, Washenko’s comments about Arabs and Muslims apparently
slowed. Guessous attributed this to her own conduct—she said
she avoided engaging with him in order to reduce stress during
her pregnancy. In July 2012, Guessous requested a three month
maternity leave. She stated in her complaint that Washenko felt
this was excessive and that she had to inform him that she was
legally entitled to twelve weeks off. Guessous was on leave
from August 2012 until October 2012. When she returned she said
Washenko largely ignored her, keeping all of her old work duties
assigned to other staff members whom Guessous described in her
complaint as “two non-Muslim, non-Arab, Christian American
12
females, who also did not seek maternity leave.” Guessous, 2014
WL 7238993, at *6.
On December 6, 2012, Guessous initiated a conversation with
Washenko in which she asked for her old duties back, to be
trained for additional duties if needed, and also confronted
Washenko about his past discriminatory and offensive conduct.
Guessous testified that she told Washenko that, as a new mom,
she did not want the stress she had endured in the past.
Approximately seventy-five minutes after that conversation
ended, Mary Alexander, Fairview’s president, sent two emails to
other employers not associated with Fairview. The subject lines
of the emails read “Hiring?” and Alexander asked whether either
of these employers had any openings for “a wonderful girl that
works for me that we simply do not have enough work for right
now.” J.A. 325-27.
Three months later, on March 1, 2013, Washenko terminated
Guessous. Guessous was asked to sign a severance agreement that
would have waived her employment law rights, but she refused.
There is a dispute about whether Washenko initially cited a
change in Fairview’s financial situation or a lack of work for
Guessous’ position. Guessous, 2014 WL 7238993, at *7. Fairview
alleges that the issue of insufficient work for Guessous’
position was discussed periodically over approximately two years
prior to her termination. But Fairview avers that the decision
13
to terminate Guessous was made by Washenko in “late November or
early December 2012 . . . and that [the] decision was approved
by Ms. Alexander.” J.A. 339. In other words, Fairview admits
the decision was made by Washenko at or around the time that
Guessous confronted him about withholding her job duties and
treating her poorly prior to her pregnancy.
Guessous’ position was not filled by any new hire.
Instead, Fairview shifted her work duties to two staff members,
Kara Diaz and Tara Berger; an outside contractor, Kurt Johnson;
and to Washenko himself. Johnson is an accountant who owns his
own business and serves multiple clients. He testified,
however, that he is in the Fairview office three to four days
each week and that he spent even more time there in the past.
Ms. Diaz and Ms. Berger are both administrative assistants.
Guessous filed a discrimination charge with the EEOC on
March 5, 2013, just a few days after her termination. She filed
her civil complaint approximately one year later on February 28,
2014. Guessous’ claims were divided into six counts. Counts I,
II, and III asserted race discrimination, hostile work
environment, and retaliation respectively under § 1981. Counts
IV, V, and VI, also asserted discrimination, hostile work
environment, and retaliation, but based on religion, national
origin, and pregnancy as covered under Title VII.
14
On December 16, 2014, the district court granted Fairview’s
motion for summary judgment on all counts. The court first
noted that Guessous “failed to comply with Local Rule 56(B) in
her Opposition to Defendant’s Motion for Summary Judgement” by
citing to her own complaint and by failing to cite certain
factual allegations at all rather than pointing to evidence in
the record to show a dispute of material fact. Guessous, 2014
WL 7238993, at *10. The court “refuse[d] to consider
Plaintiff’s self-serving statements as evidence to create a
dispute of material fact” on these issues. Id. The court went
on to note that it would be proper to “consider[] the
defendant’s facts as undisputed for purposes of the motion” and
evaluate the motion as such. Id. However, the court decided to
“nevertheless proceed to assess the merits of Plaintiff’s
claims.” Id.
The district court held that Counts I, III, IV, and VI (the
discrimination and retaliation claims under both statutes)
failed because Fairview had met its burden to produce a non-
discriminatory reason (lack of work) for its underlying conduct
(terminating Guessous), and Guessous had not demonstrated a
genuine issue of material fact to show that this reason was a
pretext. As to Count II, the court concluded that only one of
Washenko’s statements “can be construed as a racially derogatory
comment,” id. at *11, and held this was insufficient to
15
establish a hostile work environment. Finally, as to Count V,
the court found that the last act contributing to the alleged
hostile work environment occurred more than 300 days before
Guessous filed a complaint with the EEOC and that this claim was
therefore time-barred. Id. at *18.
Guessous timely appealed.
II.
All issues in this appeal arise from an order of summary
judgment and are reviewed de novo. Pueschel v. Peters, 577 F.3d
558, 563 (4th Cir. 2009). Summary judgment is properly granted
where “the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). The burden is on the
nonmoving party to show that there is a genuine issue of
material fact for trial. Liberty Lobby, 477 U.S. at 248-49.
The nonmoving party must do so by offering “sufficient proof in
the form of admissible evidence” rather than relying solely on
the allegations of her pleadings. Mitchell v. Data General
Corp., 12 F.3d 1310, 1316 (4th Cir. 1993).
The court must “view the evidence in the light most
favorable to the [nonmoving] party.” Tolan v. Cotton, 134
S. Ct. 1861, 1866 (2014) (internal quotation omitted). “The
court . . . cannot weigh the evidence or make credibility
16
determinations.” Jacobs v. N.C. Admin. Office of the Courts,
780 F.3d 562, 568-69 (4th Cir. 2015). In general, if “an issue
as to a material fact cannot be resolved without observation of
the demeanor of witnesses in order to evaluate their
credibility, summary judgment is not appropriate.” Fed. R. Civ.
P. 56 advisory committee’s note to 1963 amendment.
III.
The district court granted summary judgment for Fairview on
the discrimination claims (Counts I and IV) and retaliation
claims (Counts III and VI) under both § 1981 and Title VII by
applying the McDonnell Douglas burden-shifting framework. This
framework was initially developed for Title VII discrimination
cases, McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),
but has since been held to apply in discrimination cases arising
under § 1981, Patterson v. McLean Credit Union, 491 U.S. 164,
186 (1989); Murrell v. Ocean Mecca Motel, Inc., 262 F.3d 253,
257 (4th Cir. 2001), and in retaliation cases under both
statutes, Beall v. Abbott Labs., 130 F.3d 614, 619 (4th Cir.
1997) (addressing Title VII retaliation claim); Hawkins v.
PepsiCo, Inc., 203 F.3d 274, 281 n.1 (4th Cir. 2000) (addressing
§ 1981 retaliation claim). The framework applies in employment
discrimination and retaliation cases where a plaintiff does not
present sufficient direct or circumstantial evidence showing
17
that an adverse employment action was motivated by intentional
discrimination aimed at the plaintiff’s protected
characteristic(s). Foster v. Univ. of Md.-E. Shore, 787 F.3d
243, 250 (4th Cir. 2015). This is such a case.
The McDonnell Douglas framework is comprised of three
steps: (1) the plaintiff must first establish a prima facie
case of employment discrimination or retaliation; (2) the burden
of production then shifts to the employer to articulate a non-
discriminatory or non-retaliatory reason for the adverse action;
(3) the burden then shifts back to the plaintiff to prove by a
preponderance of the evidence that the stated reason for the
adverse employment action is a pretext and that the true reason
is discriminatory or retaliatory. Tex. Dep’t of Cmty. Affairs
v. Burdine, 450 U.S. 248, 252-56 (1981); see also Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000)
(holding that the employer’s burden in step two is one of
production, not persuasion). For status-based discrimination
claims, the employee must “show that the motive to discriminate
was one of the employer’s motives, even if the employer also had
other, lawful motives that were causative in the employer’s
decision.” Univ. of Texas Sw. Med. Ctr. v. Nassar, 133 S. Ct.
2517, 2523 (2013). Retaliation claims, by contrast, require the
employee to show “that retaliation was a but-for cause of a
challenged adverse employment action.” Foster, 787 F.3d at 252;
18
see Nassar, 133 S. Ct. at 2533 (“Title VII retaliation claims
must be proved according to traditional principles of but-for
causation, not the lessened causation test stated in § 2000e–
2(m). This requires proof that the unlawful retaliation would
not have occurred in the absence of the alleged wrongful action
or actions of the employer.”). The Supreme Court has recently
reiterated that a cause need not work in isolation to be a but-
for cause. Burrage v. United States, 134 S. Ct. 881, 888 (2014)
(“Thus, if poison is administered to a man debilitated by
multiple diseases, it is a but-for cause of his death even if
those diseases played a part in his demise, so long as, without
the incremental effect of the poison, he would have lived.”).
As the district court noted, the plaintiff’s burden to show
pretext “merges with the plaintiff’s ultimate burden of
persuading the court that she was a victim of intentional
discrimination.” Guessous, 2014 WL 7238993, at *9 (citing
Burdine, 450 U.S. at 256).
A.
The facts and reasoning supporting our decision on
Guessous’ retaliation claims are also essential for analyzing
her discrimination claims. As such, we address the retaliation
claims first. In Count III, Guessous alleges that her
conversation with Washenko in December 2012 (in which she asked
for her old duties back and confronted Washenko about past
19
hostile and discriminatory conduct) constituted protected
activity under § 1981. She further alleges that Fairview
retaliated against her for engaging in that conduct by deciding
within seventy-five minutes to terminate her, as evidenced by
the emails sent by Alexander to two outside employers inquiring
whether they might hire her away from Fairview. In Count VI,
Guessous makes essentially the same allegations but seeks relief
under Title VII. Since the elements of these retaliation claims
are identical, Honor v. Booz–Allen & Hamilton, Inc., 383 F.3d
180, 188 (4th Cir. 2004), and because the district court granted
summary judgment on both for effectively the same reasons, we
review them together.
To establish a prima facie case of retaliation under either
statute, Guessous must show “(i) that [she] engaged in protected
activity, (ii) that [her employer] took adverse action against
[her], and (iii) that a causal relationship existed between the
protected activity and the adverse employment activity.”
Foster, 787 F.3d at 250 (alteration in original) (quoting Price
v. Thompson, 380 F.3d 209, 212 (4th Cir. 2004)) (quotation marks
omitted). The district court held these elements were met.
Under the McDonnell Douglas framework, establishing a prima
facie case shifted the burden to Fairview to produce a
legitimate, non-discriminatory reason for the adverse employment
action. Fairview alleged that Guessous was terminated because
20
there was insufficient work to support her position. The burden
then shifted back to Guessous to show this reason was a pretext
to disguise the true retaliatory reason for her termination.
The sole issue on appeal, therefore, is whether Guessous
met her summary judgment burden of demonstrating a genuine
dispute of material fact on the question of pretext sufficient
to make Fairview’s proffered justification a triable issue.
Foster, 787 F.3d at 254; see also King v. Rumsfeld, 328 F.3d
145, 154 (4th Cir. 2003) (Gregory, J., dissenting) (“To survive
summary judgment, however, King need not squarely rebut his
employer’s explanation. Instead, King must cast sufficient
doubt upon the genuineness of the explanation to warrant a
jury’s consideration of possible alternative and discriminatory
motivations for the firing.”).
Rather than engaging in a detailed analysis of the
competing evidence proffered by Fairview to support its lack-of-
work theory, and by Guessous to support her retaliation theory,
the district court granted summary judgment for Fairview for one
reason: that Guessous’ position remained unfilled. Guessous,
2014 WL 7238993, at *15. The court offered no elaboration in
its opinion, but its logic appears to have been that, because
the work was absorbed by Fairview’s other employees, Guessous
cannot show that there was enough work to justify keeping her on
staff and she therefore cannot prevail. If that is, indeed, the
21
court’s reasoning it is a fallacy: because Fairview has shown
it could operate without Guessous does not mean that it would
have done so absent the protected activity. Guessous’ burden is
only to show that the protected activity was a but-for cause of
her termination, not that it was the sole cause. Foster, 787
F.3d at 252; see also Montell v. Diversified Clinical Servs.,
Inc., 757 F.3d 497, 507 (6th Cir. 2014) (“[I]n retaliation
cases, courts must determine ‘what made [the employer] fire [the
employee] when it did.’” (emphasis and alteration in original)
(quoting Hamilton v. Gen. Elec. Co., 556 F.3d 428, 436 (6th Cir.
2009))).
The district court and Fairview are both correct that
Guessous failed to show there was so much work to be done that
the bookkeeping assistant’s position was an absolute necessity.
The position was not back filled and Guessous acknowledged in
her testimony that she was not always busy. A reasonable jury
could easily conclude, however, that the termination decision
was made only seventy-five minutes after Guessous’ complained to
Washenko about past comments and treatment, and that it was
therefore motivated by the complaint itself. See Okoli v. City
of Baltimore, 648 F.3d 216, 223 (4th Cir. 2011) (holding that
the “deeply suspicious [fact] that Stewart fired Okoli only
hours after she . . . complain[ed] to the Mayor” about
22
harassment was sufficient to meet plaintiff’s burden to show
pretext at the summary judgment stage).
The December 6, 2012, emails from Alexander are substantial
evidence in support of Guessous’ argument that when she
complained to her supervisor, who was also her alleged harasser,
Washenko decided to terminate her and immediately got the
decision approved by Alexander. Fairview counters that
Alexander did not know about the confrontation. This argument
has two problems. First, Guessous has presented evidence that a
co-worker brought the confrontation to Alexander’s attention
while it was ongoing because Washenko had made Guessous cry.
This alone would be enough to allow a reasonable jury to
conclude Alexander knew about the complaint and that the
termination decision was made in response. Second, Fairview has
admitted that the decision to fire Guessous was made by Washenko
in “late November or early December 2012 . . . and that [the]
decision was approved by Ms. Alexander.” J.A. 339. This
admission is consistent with Guessous’ claim that the
termination decision was made on December 6, 2012, that
Alexander was involved, and that the termination was
retaliatory.
The absence of any evidence to support Fairview’s lack-of-
work explanation is also important. Although Fairview claims
that Washenko and Alexander had discussed eliminating Guessous’
23
position in the past, there is no record evidence to support
that claim—no emails, no meeting minutes, no performance
reviews, nothing. The only thing Fairview even points to as
evidence is the pair of December 6, 2012, emails from Alexander.
Fairview points out that they explicitly say there was not
enough work for Guessous. But the fact that these emails came
on the heels of the protected activity in this case suggest that
the reason given in the emails was a pretextual one. Even if a
jury accepted Fairview’s argument that it did not need an
assistant bookkeeper, based on the record evidence it could
still conclude that the protected activity was the final straw
that motivated Guessous’ termination. See Burrage, 134 S. Ct.
at 888. Because Guessous’ evidence puts the validity of
Fairview’s explanation in doubt, it is sufficient to survive
summary judgment. See Hux v. City of Newport News, 451 F.3d
311, 315 (4th Cir. 2006) (holding a plaintiff will not survive
summary judgment by “focusing on minor discrepancies that do not
cast doubt on the explanation’s validity”); King, 328 F.3d at
154 (Gregory, J., dissenting) (“Because he has made out a prima
facie case, if King also has cast doubt upon the real
motivations behind his unique treatment, he has adduced
sufficient evidence to survive summary judgment.”).
We therefore reverse the district court and vacate the
order of summary judgment with respect to Counts III and VI.
24
B.
In Count I of her complaint, Guessous alleges that Fairview
treated her differently based on her race, ultimately
terminating her and giving her work duties to several non-Arab
employees in violation of § 1981. In Count IV, she makes the
same allegations except that she asserts the discriminatory
conduct was based on her religion, national origin, and
pregnancy as covered under Title VII. As the elements of these
discrimination claims are effectively the same and the district
court granted summary judgment on both for effectively the same
reasons, we review them together.
In a typical discriminatory discharge case, the plaintiff
establishes a prima facie case by showing “(1) that [s]he is a
member of a protected class; (2) that [s]he suffered from an
adverse employment action; (3) that . . . [s]he was performing
at a level that met [her] employer’s legitimate expectations;
and (4) that the position was filled by a similarly qualified
applicant outside the protected class.” King, 328 F.3d at 149.
As we have explained, however, the prima facie requirements are
not set in stone, and “differing factual circumstances may
require adaptation.” Duke v. Uniroyal Inc., 928 F.2d 1413, 1417
(4th Cir. 1991). An adaptation of the prima facie case is
required here, because this is not a typical discriminatory
discharge case, where a putatively poor-performing employee is
25
terminated and replaced by someone outside the protected class.
Because Fairview claims it terminated Guessous because it lacked
enough work for a full-time bookkeeping position, this case is
closer to a reduction-in-force case, where unnecessary positions
are eliminated, than it is to a typical discharge case.
Accordingly, adapting the final prima facie requirement to the
facts of this case means that Guessous was required to show that
her job duties were absorbed by employees not in the protected
class or otherwise show that Fairview did not treat Guessous’
protected characteristics neutrally when deciding to terminate
her. See id.; Merillat v. Metal Spinners, Inc., 470 F.3d 685,
690 n.1 (7th Cir. 2006) (explaining that in a “mini-RIF” case,
which involves the elimination of only one position, “[t]he
retention of an employee outside the protected class to perform
the plaintiff’s duties is nothing more than a demonstration of
more favorable treatment, particularly tailored to the factual
circumstances of a mini-RIF case.”). Given the undisputed
evidence that Guessous’ duties were absorbed by non-Arab, non-
Muslim employees, Guessous has established a prima facie case of
discriminatory discharge. The question, then, is whether
Guessous met her summary judgment burden of demonstrating a
genuine dispute of material fact on the question of pretext
sufficient to make Fairview’s proffered justification a triable
issue. Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d
26
310, 319 (4th Cir. 2005). The district court recognized that
Guessous offered three arguments, supported by the record, to
rebut the proffered justification as pretextual: “(1) the
decision to terminate her was finalized seventy-five minutes
after she engaged in protected activity, (2) no one else was
terminated for the reasons provided by Defendant, and (3) she
was terminated by her aggressor.” Guessous, 2014 WL 7238993, at
*11. But the court concluded that “[n]one of these . . . could
lead a reasonable jury to conclude by a preponderance of the
evidence that . . . lack of work [] was not its true reason” for
terminating Guessous. Id. The court did not offer further
reasoning in support of this legal conclusion.
As with the retaliation claims, the court observed that
Guessous’ position was not filled after her termination. Id.
As noted above, however, this is not a typical discharge case,
so the fact that Guessous was not replaced by a new hire does
not prevent Guessous from establishing pretext and thus is not
fatal to her claim. Whether or how this played into the court’s
analysis, however, is unclear because replacement by a person
outside the protected class is a prima facie element of a
discrimination claim. King, 328 F.3d at 149. The district
court explicitly found that Guessous had established a prima
facie case, so to the extent it relied on the fact that the
position was never filled to conclude she had not met her
27
burden, the court’s opinion appears to be internally
inconsistent. Nor is there anything in the McDonnell Douglas
burden-shifting framework that says “a plaintiff must always
introduce additional, independent evidence of discrimination.”
Reeves, 530 U.S. at 149. To the extent that the evidence
supporting a plaintiff’s prima facie case also undermines the
employer’s non-retaliatory justification, that evidence may be
called upon by the trier of fact in determining whether or not
the proffered justification is pretextual. Id. at 143. It is
therefore not clear why the court felt Guessous’s evidence of
discriminatory purpose was outweighed by Fairview’s evidence
that it had not hired a replacement.
For largely the same reasons discussed in connection with
Guessous’ retaliation claims, the evidence in the record is
sufficient to permit a reasonable jury to conclude that
Fairview’s lack-of-work claim is a pretext for discrimination.
Fairview contends that it had been considering the elimination
of Guessous’ position for two to three years before she was
terminated, but there is no evidence in the record documenting
the existence of a years-long evaluation of the need for
Guessous’ position. While Fairview contends the “wonderful
girl” emails sent by Alexander on December 6, 2012, confirm the
lack of work, a jury would be entitled to take those emails at
less than face-value, given that they were sent so soon on the
28
heels of Guessous’ conversation with Washenko about his
treatment of her, a conversation about which Alexander had
contemporaneous knowledge. Moreover, the record evidence shows
that other employees—including those to whom Guessous’ work was
redistributed—were not busy and yet kept their jobs. J.A. 260-
61 (“Kara . . . said to me, ‘Oh, my god, Monica, I have nothing
to do today.’ . . . And [Kara’s] like, ‘I’m browsing Pinterest,
I’m just pinning this, pinning this, pinning that.’ And
[Washenko] even confirmed it that Kara had nothing to do.”).
More to the point, all of the evidence of Washenko’s disparaging
remarks and statements that Muslims and Middle Easterners were
“crooks” and untrustworthy support the allegation that the
termination was a continuation of past discrimination, brought
to a head by Guessous’ complaint about that very discriminatory
conduct. The record establishes a history of discomfort,
distrust, and disparaging treatment directed at Guessous, and it
demonstrates a discriminatory animus on the part of Washenko.
At oral argument, counsel for Fairview attempted to
distinguish between what it admitted were Washenko’s
inappropriate comments and Guessous’ allegation that the
termination was motivated by animus. Oral Argument 25:00. But
Guessous’ burden is only to “produce sufficient evidence upon
which one could find that ‘the protected trait . . . actually
motivated the employer’s decision.’” Hill v. Lockheed Martin
29
Logistics Mgmt., Inc., 354 F.3d 277, 286 (4th Cir. 2004)
(quoting Reeves, 530 U.S. at 141). That counsel believes the
statements were inappropriate but not indicative of animus is of
no moment—a reasonable jury would certainly be entitled to reach
a different conclusion. As this is the extent of Guessous’
burden at the summary judgment stage, we reverse the district
court and vacate the order of summary judgment with respect to
Counts I and IV.
IV.
In Count II, Guessous alleges she was subjected to a
hostile work environment based on her race and seeks to recover
under § 1981. In Count V she makes the same allegation with
respect to her religion, national origin, and pregnancy, seeking
recovery under Title VII. The elements of a hostile work
environment claim “are the same under either § 1981 or Title
VII.” Spriggs v. Diamond Auto Glass, 242 F.3d 179, 184 (4th
Cir. 2001). To prevail on a hostile work environment claim, “a
plaintiff must show that there is ‘(1) unwelcome conduct; (2)
that is based on the plaintiff’s [protected characteristic]; (3)
which is sufficiently severe or pervasive to alter the
plaintiff’s conditions of employment and to create an abusive
work environment; and (4) which is imputable to the employer.’”
30
Okoli, 648 F.3d at 220 (quoting Mosby-Grant v. City of
Hagerstown, 630 F.3d 326, 334 (4th Cir. 2010)).
A.
Because Count V squarely presents a statute of limitations
issue also implicating Count II, we address it first. The
district court granted Fairview’s motion for summary judgment on
Count V, finding that Guessous’ Title VII hostile work
environment claim was time barred. To pursue a claim under
Title VII, a Title VII Charge must be filed with the EEOC within
a statutorily defined period of time of either 180 or 300 days.
42 U.S.C. § 2000e-5(e)(1); see also Holland v. Washington Homes,
Inc., 487 F.3d 208, 219 (4th Cir. 2007). The district court
found, and the parties agree, that the statutory period for this
case is 300 days.
“A hostile work environment claim is composed of a series
of separate acts that collectively constitute one ‘unlawful
employment practice,’” and the Supreme Court has held that such
claims are subject to a “continuing violation” theory 5: “In
5To be precise, the Supreme Court rejected the “continuing
violation” doctrine then followed in the Ninth Circuit, which
held a defendant could be liable for discrete discriminatory
acts that were otherwise time barred if those acts were related
to subsequent violations falling within the statutory period.
Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002).
However, it adopted such a doctrine with respect to hostile work
environment claims, and this and other courts have referred to
this doctrine as a “continuing violation” approach. E.g.,
(Continued)
31
determining whether an actionable hostile work environment claim
exists, we look to ‘all the circumstances,’” and “[p]rovided
that an act contributing to the claim occurs within the filing
period, the entire time period of the hostile environment may be
considered by a court for the purposes of determining
liability.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101,
116-17 (2002) (emphasis added). In other words, even if most of
the harassing conduct on which a plaintiff relies to establish
her hostile work environment claim occurred outside the
statutory period, the claim will be considered timely if at
least one act continuing the violation occurred within the
statutory period. Furthermore, the plaintiff may recover for
all of the harm resulting from the hostile work environment, not
just those contributing acts that occurred during the statutory
period. Id. at 119 (“If Congress intended to limit liability to
conduct occurring in the period within which the party must file
the charge, it seems unlikely that Congress would have allowed
recovery for two years of backpay.”).
Gilliam v. S.C. Dep’t Of Juvenile Justice, 474 F.3d 134, 140
(4th Cir. 2007) (“The Supreme Court, however, in its Morgan
decision in 2002, explained the standards for applying the
continuing violation doctrine-undermining our earlier authority
on this point-and instructed that evidence of behavior occurring
outside of the applicable limitations period can be used to
support a plaintiff’s hostile work environment claim.”).
32
The discriminatory and retaliatory termination claims
(Counts IV and VI) survived the limitations inquiry because each
of those counts was predicated on the termination itself, which
occurred on March 1, 2013, just days before Guessous filed her
charge with the EEOC. Guessous argued to the district court
that the termination was also a constituent act contributing to
the hostile work environment and that Count V was therefore also
timely. Alternatively, Guessous argued that Washenko’s decision
to remove her assignments from her in November 2012 after she
returned from maternity leave was a constituent act supporting
the hostile work environment claim and also occurred within the
statutory period.
The district court held that “[d]iscrete acts includ[ing],
inter alia, termination, failure to promote, denial of transfer
and refusal to hire,” as well as removing work assignments, are
“different from the hostile work environment claims” and that,
because such discrete acts are separately actionable, they
cannot comprise part of a hostile work environment claim.
Guessous, 2014 WL 7238993, at *17. That holding was in error.
In Morgan, the Supreme Court held that a time-barred
discrete act claim remains time-barred even if it is part of a
series of related actions, some of which occurred during the
limitations period. See id. at 113 (“[D]iscrete discriminatory
acts are not actionable if time barred, even when they are
33
related to acts alleged in timely filed charges.”). Morgan thus
establishes that the continuing-violation doctrine cannot be
used to pursue claims challenging time-barred discrete acts.
That, however, is not the issue in this case, as Guessous
does not rely on the continuing-violation doctrine to revive
time-barred discrete acts. Indeed, there are no time-barred
discrete acts here—the discrete acts about which Guessous
complains occurred only a few months before she filed her EEOC
charge. Instead, the issue in this case is whether non-time-
barred discrete acts can be considered part of the “series of
separate acts that collectively” create a hostile work
environment, id. at 117, thus rendering a hostile-environment
claim timely under the continuing-violation doctrine.
The Supreme Court has recently explained that in a
constructive-discharge case, the employee’s resignation is the
culmination of the intolerable discriminatory conduct of the
employer, such that the relevant limitation period starts with
the employee’s resignation, not the last act of the employer.
See Green v. Brennan, 2016 WL 2945236 at *6 (U.S. May 23, 2016).
If a constructive discharge can be part and parcel of a
discriminatory pattern of conduct, we see no reason that a
discrete act cannot. So long as the act is part of the pattern
of discriminatory treatment against the employee, then that act
should be sufficient for purposes of the continuing-violation
34
doctrine, even if the act would otherwise qualify as a discrete
act that is independently actionable.
In Green, the Supreme Court also clarified the holding in
Morgan to be that a hostile-environment claim “includes every
act composing that claim, whether those acts are independently
actionable or not.” 2016 WL 2945236 at *6 (emphasis added). It
pointed out that “even if a claim of discrimination based on a
single discriminatory act is time barred, that same act could
still be used as part of the basis for a hostile-work-
environment claim, so long as one other act that was part of
that same hostile-work-environment claim occurred within the
limitations period.” Id. at *9 n.7 (emphasis added) (citing
Morgan, 536 U.S. at 117). As such, the district court’s
conclusion that neither the withdrawal of work from Guessous nor
her termination were facts that could support her Title VII
hostile work environment claim was erroneous. Because the work
assignments were withdrawn in November 2012, and the termination
occurred in March 2013, both constitute facts within the
statutory period which contributed to the hostile work
environment and make that claim timely.
B.
With respect to Count II, the district court granted
summary judgment for Fairview, holding that only one of
Washenko’s comments was racially derogatory, that this was the
35
only unwelcome conduct alleged to be based on Guessous’ race,
and that this was insufficiently severe or pervasive conduct to
support a hostile work environment claim under § 1981.
Hostile work environment claims under § 1981 are subject to
a four year limitation period. White v. BFI Waste Servs., LLC,
375 F.3d 288, 291-92 (4th Cir. 2004). Because Guessous filed
her complaint in the district court on February 28, 2014,
“unwelcome conduct” occurring on or after February 28, 2010,
falls within the statutory period. As already discussed,
however, hostile work environment claims under Title VII are
also subject to the “continuing violation” theory for
establishing limitations periods which can make the defendant
liable for conduct occurring prior to the statutory period as
well. As there was relevant conduct that occurred before
February 28, 2010, this Court must decide whether the same
continuing violation theory applies in § 1981 cases.
Four of our sister circuit courts of appeal have addressed
this issue, and all four have held that the Morgan continuing
violation approach applies to § 1981 hostile work environment
claims just as it does to such claims under Title VII. Tademy
v. Union Pac. Corp., 614 F.3d 1132, 1153-54 (10th Cir. 2008);
Dandy v. United Parcel Serv., Inc., 388 F.3d 263, 270 (7th Cir.
2004); Madison v. IBP, Inc., 330 F.3d 1051, 1061 (8th Cir.
2003); Shields v. Fort James Corp., 305 F.3d 1280, 1282 (11th
36
Cir. 2002). In Morgan, the Supreme Court characterized hostile
work environment claims as addressing “a single unlawful
employment practice,” rendering the constituent acts forming
that practice effectively indivisible. 536 U.S. at 115, 117.
Our sister circuits have viewed this as a simplification of the
law, e.g., Shields, 305 F.3d at 1282, allowing the courts to
view a hostile work environment claim holistically in the same
way that discrete act claims are normally treated. This is
consistent with the Supreme Court’s analysis explicitly
contrasting the simple task of identifying a discrete act “such
as termination, failure to promote,” etc., with the murkier task
of pinning down hostile work environment claims that by “[t]heir
very nature involve[] repeated conduct.” Morgan, 536 U.S. at
114-15. That problem is as present in § 1981 claims as it is in
Title VII claims, and the Morgan Court’s solution is therefore
equally applicable. Applying the continuing violation approach
to § 1981 claims would also extend this Court’s policy of
treating Title VII and § 1981 hostile work environment claims
the same. Spriggs, 242 F.3d at 184. As such, we hold that
Morgan applies with equal force when such claims arise under
§ 1981.
We now turn to the merits of the race-based hostile work
environment claim. We first note that application of Morgan to
the facts of this case results in all of the alleged conduct
37
being relevant to our inquiry. The district court held that the
first element for a successful claim was met as the alleged
conduct was, indeed, unwelcome. It granted summary judgment for
Fairview, however, based on a combination of the second and
third elements of the claim—that the conduct be based on the
plaintiff’s race and be severe or pervasive. First, the court
held that Washenko’s statement calling the people of Dubai
“camel people” was the only one that could be characterized as
racially derogatory. Second, it determined that this one
comment was insufficient to cause a reasonable person to believe
“the environment [was] objectively hostile or abusive.” EEOC v.
Sunbelt Rentals, Inc., 521 F.3d 306, 318 (4th Cir. 2008).
Two aspects of the district court’s decision were in error:
with respect to the second step of the analysis, the district
court took an overly cramped view of what constitutes race-based
conduct; with respect to the third step, the court failed to
consider the totality of circumstances, as it must when
determining whether unwelcome conduct is severe or pervasive.
Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 277 (4th
Cir. 2015).
Turning first to the district court’s approach to race, the
Supreme Court has held that “Congress intended to protect from
discrimination identifiable classes of persons who are subjected
to intentional discrimination solely because of their ancestry
38
or ethnic characteristics.” Saint Francis Coll. v. Al-Khazraji,
481 U.S. 604, 613 (1987). Where the conduct at issue is “based
on the fact that [the plaintiff] was born an Arab, rather than
solely on the place or nation of his origin, or his religion, he
will have made out a case under § 1981.” Id. Based on
legislative history, the Court further noted that many of the
“races” which members of Congress perceived to be covered by
§ 1981 comprised ancestrally related peoples more easily
identifiable by their cultural affinities than their
physiognomic characteristics. 6 Id. at 612 (noting references to
“Scandinavian races,” “the Chinese,” “Latin,” “Spanish,” Anglo-
Saxon races,” “Jews,” “Mexicans,” “blacks,” “Mongolians,”
“Gypsies,” and “the German race”). In fact, the Court went so
far as to say “that a distinctive physiognomy is not essential
to qualify for § 1981 protection.” Id. at 613.
Guessous’ assertion is that her Arab ethnicity 7 motivated
Washenko’s conduct, or at least enough of his conduct to
6
In fact, the word “race” does not appear in § 1981 at all,
although the statute has long been construed as barring racial
discrimination in public and private contracts. Runyon v.
McCrary, 427 U.S. 160, 168-69 (1976).
7
Although “Arab” is usually considered a cultural rather
than racial designation, the Supreme Court has specifically held
that it is a cognizable protected class under § 1981. Saint
Francis Coll., 481 U.S. at 613; see also id. at 610 n.4
(discussing Arab peoples as members of the Caucasoid race, as
(Continued)
39
constitute intolerable working conditions. Viewed through the
lens just established, it is not at all clear how the district
court concluded that “camel people” was racially derogatory, but
all 8 “of Washenko’s [other] statements toward [Guessous], while
distasteful, were references to and questions about Islam and
Moroccan culture” and not her Arab ethnicity. Guessous, 2014 WL
7238993, at *13. To begin, the comments were more than
distasteful, and it is beyond euphemistic to characterize them
as references and inquiries. More to the point, many of these
comments were either clearly or conceivably racial.
During their very first interaction, Washenko told Guessous
that “Middle Easterners . . . are a bunch of crooks, [who] will
stop at nothing to screw you.” J.A. 207-08. A broad comment
like this one, aimed at no particular religion or nationality,
could certainly be construed as racially motivated. That
comment also set the stage for Guessous’ and Washenko’s working
relationship from that point forward. In late 2011, Washenko
assumed that Guessous, an Arab from Morocco, would be able to
well as the limitations of a purely scientific approach to such
determinations).
8 The district court used the word “most” rather than “all”
as we use here. We make this substitution based on the district
court’s holding that only one of Washenko’s many statements was
racially hostile. By implication, the court must have concluded
that none of the rest of his comments was racial in nature.
40
interpret for a Persian Iranian restaurant employee who did not
speak English. When Guessous told him the employee spoke Farsi
and she did not, Washenko said “shouldn’t there be some sort of
secret language you all understand?” J.A. 246. A jury could
easily conclude that “you all” referred to a racial category,
that it was a reference to Middle Eastern people, and that
Washenko perceived Arabs and Persians to be members of the same
race (or was entirely unaware of any distinction at all). Even
his comment that Muslims and Christians do not worship “the same
God,” while clearly motivated in large part by a religious
animus, could be construed as taking on racial overtones when
Washenko followed up by saying, “We are not the same.” J.A.
225-26. The manner in which Washenko delivered this statement
left Guessous feeling less than human, a hallmark of racially
insensitive conduct.
The district court put itself in the place of the jury when
it decided that only one of the remarks was racial. The court
said the remaining comments “were references to and questions
about Islam and Moroccan culture,” but a jury might well decide
they were also motivated by broader ethnic animus. See Saint
Francis Coll., 481 U.S. at 613 (holding that discrimination
“based on the fact that [plaintiff] was born an Arab, rather
than solely on the place or nation of his origin” will support a
§ 1981 claim (emphasis added)). After all, Washenko regularly
41
interchanged his harassment of Guessous, referring to Muslims,
Morrocans, Palestinians, Egyptians, Middle Easterners, and North
Africans. A jury could reasonably conclude that Washenko bore
animus towards all Middle Eastern people (other than Israelis
whom Washenko referred to as the victims of Palestinian
attacks); that Guessous reasonably perceived many of these
comments as racial insofar as Washenko considered most Middle
Easterners and Middle Eastern Muslims to be “crooks” or
“terrorists”; and therefore that Washenko harassed Guessous
based on her Arab ethnicity even when his comments referred to
other, related aspects of her identity. In reaching this
conclusion, we do not endorse Guessous’ argument that a § 1981
claim may be pursued on the theory that all aspects of her
identity form “an amorphous whole,” making Fairview liable under
that statute for non-race-based harassment. 9 We hold only that
it would be possible for a jury to interpret many of Washenko’s
comments as based on race in addition to other forms of animus.
9
Such a theory may be available under Title VII to the
extent that it covers multiple elements of identity, including
religion and national origin, not covered by § 1981. This Court
has not decided whether such “hybrid” claims may be maintained,
and has no occasion to do so here, but several of our sister
circuits have agreed that, under Title VII, “where two bases for
discrimination exist, they cannot be neatly reduced to distinct
components.” Lam v. Univ. of Hawai’i, 40 F.3d 1551, 1562 (9th
Cir. 1994).
42
Finally, on the question of whether the conduct was severe
or pervasive, the district court erred by failing to take into
account the totality of the circumstances as we have held it
must do at this stage of the analysis. Spriggs, 242 F.3d at
184. The “severe or pervasive” question is subject to the same
standard under § 1981 that applies to Title VII. “When the
workplace is permeated with discriminatory intimidation,
ridicule, and insult that is sufficiently severe or pervasive to
alter the conditions of the victim’s employment and create an
abusive working environment, Title VII [and therefore § 1981] is
violated.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21
(1993) (internal citations and quotation marks omitted).
“[S]imple teasing, offhand comments, and isolated incidents
(unless extremely serious) will not amount to discriminatory
changes in the terms and conditions of employment.” Faragher v.
City of Boca Raton, 524 U.S. 775, 788 (1998) (internal citations
and quotation marks omitted).
Because its analysis of what constitutes a racially
derogatory comment was flawed, as just discussed, much more
conduct should have been reviewed by the court in addressing
this question. As the district court noted, we have found
conduct sufficiently severe or pervasive where an Iranian
employee was called “the local terrorist, a camel jockey, and
the Emir of Waldorf” repeatedly throughout the duration of his
43
employment. Amirmokri v. Baltimore Gas & Elec. Co., 60 F.3d
1126, 1131 (4th Cir. 1995) (quotation marks omitted). But the
district court attempted to distinguish Amirmokri from this
case, noting that there the plaintiff developed an ulcer and
resigned. Guessous, 2014 WL 7238993, at *12. There is, of
course, no requirement that the plaintiff develop physical
symptoms, nor that she leave her job, to prove sufficiently
severe or pervasive harassment. See Forklift, 510 U.S. at 21–
22. The question is whether Guessous reasonably perceived “the
work environment to be abusive.” Amirmokri, 60 F.3d at 1131.
The conduct overlooked by the district court demonstrated a
greater “frequency of the discriminatory conduct,” some of the
episodes were more “sever[e]” than the single “camel people”
comment, and there was substantial testimony that the
discrimination “unreasonably interfere[d] with [Guessous’] work
performance.” Forklift, 510 U.S. at 23. There was also
evidence—in the form of Guessous’ email to her brother-in-law
and testimony that she often left the office to cry and that she
was concerned about how the stress from her work environment
might affect her pregnancy—that Guessous’ “psychological well-
being” was at risk, which “is, of course, relevant to
determining whether the plaintiff actually found the environment
abusive.” Id.
44
Moreover, the court did not look at the evidence of
Washenko’s intimidating and intrusive management of Guessous or
that behavior’s relationship to his race-based statement that
“Middle Easterners . . . are a bunch of crooks.” J.A. 207-08.
Guessous testified that she felt demeaned by Washenko’s
intrusive management of her (and her alone), the intimidating
way he would stand over her during confrontational
conversations, and the underlying assumption that she was not to
be trusted. The evidence suggests Washenko thought Guessous was
untrustworthy—and intended to make that clear to her—from the
moment she disclosed her origins to him at their initial
meeting. A jury would certainly be entitled to reach that
conclusion. We have long held that “whether harassment was
sufficiently severe or pervasive is quintessentially a question
of fact,” Walker v. Mod-U-Kraf Homes, LLC, 775 F.3d 202, 208
(4th Cir. 2014) (citations and quotation marks omitted), and
here Guessous has presented diverse evidence sufficient to
create a material dispute as to the severity of the unwelcome
conduct.
By failing to address numerous comments that were open to a
racially motivated interpretation, and by circumscribing its
analysis to just one comment without reviewing the totality of
the circumstances, the district court committed reversible error
45
in its grant of summary judgment for Fairview. As to Count II
we reverse.
V.
Based on the foregoing, we vacate the order of summary
judgment on all claims and remand for further proceedings.
VACATED AND REMANDED
46