Best Ohio National Origin Discrimination Attorney and Top Age Discrimination Lawyer Answer: Can my supervisor make comments about racial stereotypes to me? I was treated worse than other employees because of my accent, is that legal? Can I be fired because I’m old? Can I sue my employer because my supervisor doesn’t like people from the Middle East?
You may be surprised to hear that the longest running American sitcom is the animated show, The Simpsons. Both popular and critically acclaimed, the cartoon has received over 30 Emmy Awards and a Peabody Award. The show depicts the antics of a middle class suburban family and is known for eccentric voices, numerous oddball characters, and catchphrases like, “D’oh,” “Why you little…” “Ay caramba,” “Don’t have a cow, man” and “Eat my shorts.”
One popular Simpsons catchphrase comes from a character of Indian descent named Apu Nahasapeemapetilon. Apu works at Kwik E Mart, the local Seven/Eleven style store in the fictional town of Springfield and his catchphrase delivered in a exaggerated Indian accent as, “Thank you, come again.” Some may think that the caricature is racist, while others view many of the scenarios and characters in The Simpsons as being satirical. Whatever view one takes, most people would agree that referencing an offensive stereotype about a “typical” employee who works at a convenience store, akin to Apu, should be avoided in the workplace.
A recent decision from the United States District Court for Northern District of California exemplifies that comments about racial stereotypes, combined with animus toward employees linked to race or ethnicity can lead to costly and damaging results for a company. In Almaweri v. Walgreen Specialty Pharmacy, LLC, a former store manager of Arab descent pursued both age discrimination and national origin discrimination claims against Walgreens after being terminated.
Almaweri is an Arab man of Middle Eastern descent who worked for Walgreens from 1999 through 2013. During the majority of his 14 years of employment at Walgreens, Almaweri managed a store in East Oakland, California. On several occasions, Almaweri’s supervisors noted that his store was in poor condition, however, he regularly received satisfactory reviews and was well-liked by the store’s employees and patrons. One former supervisor described Almaweri as being the best fit for his assigned store and a “warrior” in the “toughest store in the district.” One of Almaweri’s former subordinate employees claimed that Almaweri turned the store around during his tenure there, by taking a disorganized Walgreens location with a shop-lifting problem and turning it into a store that was recognized as having the best photo department, best cash handling records, and best pharmacy in the district. The witness claimed that on several occasions, Walgreens sent loss prevention executives to visit Almaweri’s store to discover and learn how he was able to keep his shrink rates so low in an economically depressed area.
Sometime in 2010, Almaweri’s district got a new district manager, Gorman Moy. According to Almaweri and his witness, when Moy took over he was overly critical of Almaweri. Moy’s comments on Almaweri’s reviews were less favorable, and in February 2012, Moy issued discipline to Almaweri for being a few minutes late to meeting – even though Almaweri was late because his replacement at the store was running behind. In order to be on time to the meeting Almaweri would have left his store without appropriate managerial coverage, which also would have been against Walgreens’ policies. Almaweri’s witness claimed that during Moy’s management and supervision, Moy frequently came to the store to “nit-pick” Almaweri’s performance and on numerous occasions she heard Moy tell Almaweri that he was too old to be a store manager, and suggested that he retire in addition to telling Almaweri that he couldn’t understand what Almaweri was saying. The witness stated she recalled Moy’s statements because he sounded condescending toward Almaweri and she never had any trouble understanding Almaweri herself.
In April 2012, Moy transferred Almaweri to a different store. The parties disagree over why the transfer occurred, but after the transfer, Almaweri recalled that Moy amplified his animosity toward Almaweri by taking the following actions:
- Moy told Almaweri that he was too old to do his job;
- Moy told Almaweri he did not comprehend things;
- Moy told Almaweri that he was too old to compete;
- Moy told Almaweri he would not make it in the new Walgreen’s era;
- Moy told Almaweri that he preferred to give opportunities to “rookies” who would do better and learn faster than Almaweri could;
- Moy told Almaweri that Almaweri was stuck in his ways;
- Moy also criticized Almaweri in public by stating that his accent was too difficult to understand.
Almaweri also provided evidence that his district community leader told him to resign and work at a “7-Eleven” to be with, “his kind of people.” In March 2012, Moy again disciplined Almaweri for failing to attend a meeting, however, Almaweri claims that Moy appeared at his store for an unscheduled meeting during a time when Almaweri was not even scheduled to be at work. Moy also continued to discipline Almaweri over the next six to eight months, but Almaweri claims that during this time, his store showed a marked increase in sales and suggestive selling, and experienced an increase in gross profits, while other stores in his district where suffering. Despite these numbers, Almaweri was still terminated. Almaweri claims he complained about Moy harassing him on April 22, 2013, just a few weeks before being terminated on May 3, 2013.
In reviewing the evidence to rule on Walgreen’s motion for judgment based on a lack of questions of fact for a jury to decide, the Court decided that there were issues that should be considered by a jury regarding whether the reason supplied by Walgreens for the termination was actually true, or evidence of false pretext to hide discrimination:
Here, Plaintiff has met his burden of raising a triable issue of fact regarding pretext, and does not rely merely on a subjective argument of fairness. First, there is a disputed issue of fact as to whether Moy made racist and ageist comment to and about Plaintiff. Plaintiff testified that after he was transferred to the San Pablo store, Moy commented that Plaintiff was “too old to do his job,” “did not comprehend things,” was “too old to compete,” was “too old to perform his duties” as a manager, that he would not “make it in the new Walgreens era,” that Moy “preferred to give opportunities to rookies,” and that “rookies could do better and learn faster” than Plaintiff. … Plaintiff also testified that Moy “frequently ridiculed” Plaintiff in public, saying that his accent was too difficult to understand. … Alonso reportedly told Plaintiff in 2013 to go work at “7-Eleven” with his “kind of people,” and while he was not Plaintiff’s supervisor, he was the Community Leader for Plaintiff’s store and visited Plaintiff’s store almost every day, writing up his notes and sharing them with Moy. … Moy and Alonso deny making these racist and ageist statements. Although Defendant argues that these remarks were too remote in time to constitute any inference of discriminatory animus (see Martin v. Genesco, Inc., 2008 WL 4816455, at * (E.D. Cal. Nov. 5, 2008) (comments made one year before the termination, among other things, did not show pretext), these remarks were allegedly made in the time after Plaintiff was transferred to the new store and through 2013 when he was terminated.
Plaintiff has also provided other facts to support a triable issue of fact as to pretext. Defendant does not dispute that Moy replaced Plaintiff with a younger, non-Arab woman, which Plaintiff claims is further evidence of Defendant’s discriminatory intent. Further, Plaintiff states that he was the only Arab employee to be terminated. While Plaintiff also states that Moy did not promote another Arab employee and that Azam was Indian, not Middle Eastern, he has no evidence that Moy knew that the promoted employee was actually Indian and not Middle Eastern. Also, objective criteria show that the San Pablo store was performing in a number of ways near the top of the district’s thirty-three stores under Plaintiff’s leadership. Plaintiff’s lowest scores on his performance evaluations are in subjective criteria, which is relevant to the pretext issue. See Atonio v. Wards Cove Packing Co., 810 F.2d 1477, 1481 (9th Cir. 1987) (“. . . we have stated that subjective practices are particularly susceptible to discriminatory abuse and should be closely scrutinized.”).
Plaintiff has raised a triable issue of fact as to his prima facie case and as to pretext. Therefore, Defendant’s Motion for Summary Adjudication as to Plaintiff’s discrimination claim is denied.
Although Almaweri ultimately lost on a few of his claims, the majority of his claims “with teeth” remain, and he can present them to a jury. Almaweri’s suit makes it clear that in the real world, it is not appropriate to engage in the behavior similar to satirical situations depicted in a fictional and comedic sitcom. Even though Almaweri is a resident of California, if you are an employee in Ohio and have experienced behavior or conduct similar to what is contained in this blog (treated less favorably than employees of a different race or national origin, supervisor made offensive or disparaging comments about your race or national origin) then you may have a claim. Most employees in Ohio are covered under Federal and State laws contained in Title VII of the Civil Rights Act of 1964 and Ohio Revised Code § 4112.02(A). These laws were enacted to prevent employers from making critical employment related decisions based on race and national origin. Specifically, it an unlawful discriminatory practice in Ohio for a qualifying employer to “discharge without just cause, to refuse to hire, or otherwise to discriminate against that person with respect to hire, tenure, terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment” based on race or national origin.
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