United States District Court, N.D. Illinois
April 20, 2004.
MOHAMMAD SAKET, Plaintiff,
AMERICAN AIRLINES, INC., Defendant
The opinion of the court was delivered by: MARK FILIP, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Mohammed Saket ("Plaintiff' or "Saket") filed this suit
against his former employer, defendant American Airlines ("Defendant" or
"American"), alleging that American discriminated against him because of
his national origin in violation of Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e et seq. This case is before the Court on
Defendant's Motion for Summary Judgment ("Motion"). (D.E. 34.) For the
reasons set forth below, the Motion is, save for one limited caveat.,
I. Factual Background
Mr. Saket is a naturalized United States citizen who was born and grew
up in Iran.*fn1 (Pl.'s St. ¶ 1.) In June of 1997, American hired Mr.
Saket (Def.'s St. ¶ 24) as a plant maintenance man. (Id ¶ 14.) In this
position, his duties ranged from tasks such as "minor basic plumbing
repair such as restrooms, leaks, etc." to assisting "in clean-up, storage[,] and
removal of hazardous waste." (Id ¶ 15.) His crew chiefs, including crew
chief Gary Weiland (Pl.'s St. ¶ 20), gave him daily work assignments.
(Id ¶ 21.) Mr. Saket's crew chiefs reported to supervisors known as
"Customer Service Managers." (Id ¶ 21.) Mr. Saket worked under three
different Customer Service Managers, one of whom was Robert Wieczorek.
(Def.'s St. ¶ 61.) Mr. Wieczorek, in turn, reported to Lauri Bourgeois.
(Id.) At the time of Mr. Saket's discharge, Ms. Bourgeois, an
African-American, was the highest ranking operational manager of the
Facilities Maintenance Department at American's O'Hare Airport
Mr. Saket and American paint very different pictures of Mr. Saket's
work environment. According to Mr. Saket, in the spring of 1998, he
complained to his crew chief Gary Weiland that he felt that a majority of
the work that Mr. Weiland assigned to him consisted of bathroom,
painting, and outdoor duties, and that these duties were not assigned as
frequently to non-Iranian plant maintenance men. (Saket Aff. ¶ 21.) Mr.
Saket further contends that Mr. Weiland stated that "[t]he only work I
have for terrorist people like you is painting and bathroom repair. If
you don't like it, leave." (Id) Mr. Saket complained about Mr. Weiland's
response to a Customer Service Manager on a Friday. (Id ¶ 22). On the
following Monday, Mr. Weiland told Mr. Saket that "no one could change
[his] view of you people who held us hostage for 400 days"; Mr. Weiland
also pointedly and while cursing advised Mr. Saket that he should not be
a "squealer." (Id ¶ 25.) Mr. Saket submitted an affidavit stating that
from 1997 until 2000, Mr. Weiland referred to him on a regular basis as a
"camel jockey," "dot head," "rag head," "terrorist," and "hostage taker,"
as well as other more vulgar, derogatory terms. (Id ¶ 29.) American
denies that these incidents occurred and contends that Mr. Saket has
recently fabricated them so as to attempt to forestall summary judgment.
The parties also disagree over a workplace incident regarding what the
parties have referred to as the "Hangar Two Office." (Pl.'s St. ¶ 61.)
Although Mr. Saket was authorized to use this office in the course of his
duties (id), one of Mr. Saket's coworkers, Mr. Jensen, entered the Hangar
Two Office and screamed at him, "What the [expletive] are you doing in my
office, [sic] get your [expletive] terrorist [expletive] out of my
office." (Saket Aff. ¶ 49.) During the course of this argument, Mr.
Jensen also purportedly said to Mr. Saket, among other things, "Don't you
to talk to me, you [expletive] Arab. Get the [expletive] out of here. If
you don't leave here within a minute, I am going to give you a permanent
dot." (Id. ¶ 50.) Mr. Saket went to Customer Service Manager Bob
Wieczorek shortly after this incident to complain about Mr. Jensen's
remarks and threats. (Id ¶ 52.) Mr. Wieczorek arranged a meeting between
Mr. Saket; Lou Sabbia, the union steward; Mr. Jensen; and Mr. Wieczorek.
(Id. ¶ 53.) After the meeting, Mr. Wieczorek told Mr. Saket that he
should "forget everything," that Mr. Jensen was experiencing "a hard time
at home," and that Mr. Jensen "didn't mean anything." (Id) According to
Mr. Saket, Mr. Wieczorek knew that Mr. Jensen had called Mr. Saket "Mr.
Ayatollah," "Mr. Terrorist," "dot head," and "Mr. Highjacker" prior to
this incident. (Saket Aff. ¶ 54.) American denies that the Jensen-Saket
Hanger Two incident occurred at all (Def.'s Resp. ¶¶ 62-65), and American
stated that it could not verify at the time of its LR 56.1 Response
whether the alleged subsequent meeting took place. (Id ¶ 67.)
In September of 1999, Mr. Saket became licensed to perform annual fire
extinguisher inspections. (Def.'s St. ¶ 27.) Shortly thereafter, Mr.
Saket bid into the fire extinguisher serviceman position. (Id) In this
role, Mr. Saket was responsible for performing both monthly and annual inspections of several hundred fire extinguishers located
throughout American's facilities at O'Hare Airport. (Id) The normal
procedure for monthly inspections was for the serviceperson to document
the inspection of a particular fire extinguisher on a preventative
maintenance sheet ("PM Sheet") and subsequently to update a log book to
reflect that the inspection had been completed. (Pl's Resp. ¶ 20.) After
performing the monthly inspection, the serviceperson was also expected to
punch a hole in a metal tag affixed to the extinguisher next to the
corresponding month of inspection. (Def.'s St. ¶ 21.) Mr. Weiland
supervised Mr. Saket's work as a fire extinguisher serviceperson. (Pl.'s
St. ¶ 120.)
In January or February of 2000, American started preparing for an
upcoming FAA audit and began planning an internal audit to ensure that
testing and inspections of all fire extinguishers had been properly
completed. (Def.'s St. ¶ 41.) Approximately three to four months
earlier, however, Mr. Saket had received approval to take a vacation and
return to Iran to get married. (Pl's St. ¶ 143.) While the record is
unclear as to what American expected of Mr. Saket (or in what time frame)
it is undisputed that he was feeling pressured to get all of his audit"
related work done before he left for vacation. (Def.'s St. ¶ 42.)*fn2
Mr. Saket left for vacation on approximately March 17, 2000, and he
returned on April 12, 2000. (Pl.'s St. ¶ 143.)
According to American, while Mr. Saket was on vacation, American
personnel preparing for the FAA audit discovered discrepancies between
the log book and Mr. Saket's PM Sheets. (Wieczorek Decl. ¶ 18.)
American subsequently set up a Board of Inquiry (that consisted of Mr. Wieczorek as Chairman and three other American employees) to conduct an
investigation into Mr. Saket's potential falsification of fire
extinguisher records. (Def.'s St. 53.) Mr. Wieczorek directed this
investigation. (Pl.'s St. ¶ 109.) As a part of the investigation,
American conducted several "fact-finding" conferences during which
American interviewed several of Mr. Saket's coworkers. (Def.'s St. ¶
American determined that Mr. Saket had placed check marks in the fire
extinguisher log book for various fire extinguishers without performing
the actual inspections in the field. (Wieczorek Decl. ¶ 231) American
arrived at this conclusion after a review of the log book and Mr. Saket's
PM Sheets for those same extinguishers did not show a corresponding check
mark entry. (Id.) American determined that Mr. Saket falsified the log
book in an attempt to make it look like he was up to date on his
inspections prior to leaving for his vacation. (Id.) American also
determined that Mr. Saket falsified the punches on a metal tag located on
one of the fire extinguishers. Mr. Wieczorek interviewed Mr. Weiland and
relied upon Mr. Weiland's input in reaching this conclusion. (Pl.'s St.
¶ 117.) Mr. Saket denies falsifying the extinguisher records or the metal
The investigation concluded on April 19, 2000. (Def.'s St. ¶ 64.) Mr.
Wieczorek presented his findings, including statements from various
witnesses, to Ms. Bourgeois. (Id.) On April 20, 2000, at Ms. Bourgeois's
direction, Mr. Wieczorek prepared a Final Advisory, terminating Mr. Saket
from American for violating American Airline Rule 16 (Def.'s St. ¶ 74),
which prohibits "[m]isrepresentation of facts or falsification of
records." (Id ¶ 8.) Ms. Bourgeois considered the results of Mr.
Wieczorek's investigation into Mr. Saket's alleged falsification of
records, together with other input from Mr. Wieczorek, in deciding to
terminate Mr. Saket. (Pl.'s St. ¶ 133.) Mr. Saket admitted that he has no
reason to believe that Ms. Bourgeois's decision to terminate him was
motivated by any discrimination and that she had not made any comments to
him that were discriminatory, insulting, or harassing in any way. (Def.'s
Mr. Saket filed a Charge of Discrimination with the Equal Employment
Opportunity Commission ("EEOC") on or about May 19, 2000, approximately
one month after he was terminated, alleging that American discriminated
against him because of his national origin. (Id. ¶ 5.) Mr. Saket filed
this suit on May 14, 2002.
On April 24, 2003, during discovery in this litigation, Magistrate
Judge Nan R. Nolan ordered American to provide plaintiff with the
original documents and metal tag allegedly falsified by Mr. Saket. (Pl.'s
St. ¶ 107.) On June 11, 2003, American admitted that it did not have any
original records, documents, or tags that Mr. Saket allegedly falsified.
(Id. ¶ 108) American subsequently indicated that these records have been
"misplaced." (Def.'s Resp. ¶ 108.) At their depositions, neither Mr.
Wieczorek, who directed the investigation that led to American's claim
that Mr. Saket falsified records, nor Ms. Bourgeois could identify in the
discovery documents that American produced the specific documents or
records that Mr. Saket allegedly falsified. (Pl.'s St. ¶¶ 110, 137.)
Moreover, neither Mr. Wieczorek nor Ms. Bourgeois could identify anyone
at American who could identify these records. (Id ¶¶ 113, 138.) II. Discussion
A. Summary Judgment Standard
Summary judgment is appropriate if "the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a
matter of law." Fed. R. Civ. P. 56(c); see also Celotex Corp, v.
Catrett, 477 U.S. 317, 322 (1986). A court's function in ruling on a
motion for summary judgment is not to weigh the evidence, but rather to
determine if there is a genuine issue of material fact for trial. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). In doing so,
the court must view the evidence and draw all reasonable inferences in
favor of the party opposing the motion. Id. at 255. Where factual matters
are in dispute, the Court is required to credit the nonmovant's version
of the facts. See Hosteller v. Quality Dining, Inc., 218 F.3d 798, 802
(7th Cir. 2000). Summary judgment is warranted only if a reasonable jury
could not return a verdict for the nonmovant See Anderson, 477 U.S. at
B. Plaintiff Concedes That He Is Not Advancing a Stand Alone Harassment
Claim. And One Would Be Barred If He Were
As a preliminary matter, the Court notes that Mr. Saket's Amended
Complaint could be fairly read as asserting a national origin harassment
claim under Title VII. (See Am. Compl. ¶¶ 8, 13, 15.) American argues at
length in its Memorandum of Law in Support of its Motion ("Memorandum" or
"Mem.") that any national origin harassment claim is beyond the scope of
Mr. Saket's administrative filings. (See Mem. at 12-15.) Mr. Saket limits
his response to this argument to a footnote in his Memorandum of Law in
Opposition to Defendant's Motion for Summary Judgment ("Opposition"). (See Opposition at 9 n.6.) In that
footnote, Mr. Saket states that "American's argument that Mr. Saket
cannot sue for harassment . . . is besides the point Mr. Saket's claim is
that his discharge was the product of national origin discrimination
the relentless campaign of harassment he experienced is trenchant
evidence of that discrimination." (Id) (emphasis added). The Court reads
Mr. Saket's footnote to concede that he is not advancing the putative
harassment claim that American identifies. Indeed, the footnote
identifies one claim a claim for wrongful discharge and it appears to
clarify how the alleged harassment, in Mr. Saket's view, is evidence in
support of that claim. Accordingly, American's Motion is moot to the
extent that it seeks summary judgment of a national origin harassment
claim that Mr. Saket is not advancing in this litigation.
This would not be the case, however, if the Court misreads Mr. Saket's
footnote and Mr. Saket is seeking to advance the harassment claim
American identifies. In his Opposition, Mr. Saket never attempted to
argue that the putative harassment claim is "within the scope of the
charges" contained in his administrative complaint. Cheek v. Peabody Coal
Co., 97 F.3d 200, 202 (7th Cir. 1996). In fact, Mr. Saket advanced no
meaningful argument on this point at all. By failing to address
American's beyond-the-scope argument, Mr. Saket has waived any argument
in support of a stand alone harassment claim. See, e.g., Harris v. Univ.
of III at Chicago, No. 97-4783, 1999 WL 281346, at *9 (N.D. Ill. Mar.
31, 1999) (holding that plaintiff s failure to address
beyond-the-scope-of-the-EEOC-charge argument results in waiver and
entitles the defendant to summary judgment); accord Lewis v. Xerox
Corp., No. 95-7013, 1998 WL 160893, at *6 (N.D. Ill. Mar. 31, 1998)
(citing, inter alia, United States v. Dunkel, 927 F.2d 955, 956 (7th
Cir. 1991) (per curiam)). Therefore, to the extent that Mr. Saket is
advancing the stand alone harassment claim, the Court grants summary judgment against Mr. Saket on that
C. National Origin Discrimination Under Title VII
Title VII, in relevant part, makes it illegal for an employer "to
discharge any individual . . . because of such individual's . . .
national origin." 42 U.S.C. § 2000e-2(a)(1). A Title VII plaintiff
seeking to "defeat an employer's motion for summary judgment has two
methods of proof at his or her disposal." Pafford v. Herman, 148 F.3d 658,
665 (7th Cir. 1998). Under the first method, the "direct method," the
plaintiff may show through direct or circumstantial evidence that the
discharge was motivated by the plaintiff's national origin. Id The
circumstantial evidence, however, "must point directly to a
discriminatory reason for the employer's action." Cerutti v. BASF Corp.,
349 F.3d 1055, 1061 (7th Cir. 2003) (internal quotation and citation
omitted). Under the second method, the "indirect method" of proof, a
plaintiff without directevidence of national origin discrimination can
defeat an employer' summary judgment motion by employing the
burden-shifting approach outlined in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). See Maarouf v. Walker Mfg. Co., Div. of Tenneco.
Auto., Inc., 210 F.3d 750, 752 (7th Cir. 2000).
Under the McDonnell Douglas burden-shifting framework, a plaintiff must
first establish a prima facie case of national origin discrimination. Id
To establish a prima facie case, a plaintiff must demonstrate that he or
she: (1) is a member of a protected class; (2) was meeting the employer's
legitimate performance expectations; (3) has suffered an adverse
employment action; and (4) that similarly situated employees not in the protected
class were treated more favorably. Id. Once the plaintiff has made these
showings, the plaintiff has established a rebuttable presumption of
national origin discrimination, and the burden shifts to the employer to
offer a "legitimate, non-discriminatory reason" for the discharge. Id. If
the employer meets its burden, then the burden shifts back to the
plaintiff, who must prove that the employer's stated reason for the
discharge is merely a pretext for national origin discrimination.*fn4
Id. The Seventh Circuit has repeatedly instructed, however, that the
burden-shifting framework of McDonnell Douglas is flexible, and that it
is appropriate to modify the framework to "meet the facts of a particular
case." Jones v. Union Pac. R.R. Co., 302 F.3d 735, 742 (7th Cir. 2002).
In this regard, the facts of a case sometimes "call for a simultaneous
review of [whether the employee was meeting the employer's legitimate
expectations] and pretext" where those two issues are intertwined as
1. Direct Method Of Proof
To proceed under the direct method, Mr. Saket "must provide direct or
circumstantial evidence that the decisionmaker" discharged him because of
his national origin. Rogers v. City of Chicago, 320 F.3d 748, 754 (7th
Cir. 2003) (emphasis in original). The parties agree that Ms. Bourgeois
is the formal decision-maker in this case, although Mr. Saket argues that
what he perceives as discriminatory animus of other American employees
should be imputed to her, regardless of whether she personally harbored
any subjective discriminatory animus. (See, e.g., Opposition at 6 ("Ms.
Bourgeois is not a quarantined decision-maker.").) Direct evidence, for purposes of this case, is evidence that, if believed by the trier of
fact, would prove that Ms. Bourgeois discharged Mr. Saket because of his
national origin without reliance on inference or presumption. See
Rogers, 320 F.3d at 748. Circumstantial evidence that would allow Mr.
Saket to proceed under the direct method of proof is evidence that points
directly to Mr. Saket's having been terminated because of national
origin. See Cerutti v. BASF Corp., 349 F.3d 1055, 1061 (7th Cir. 2003).
In this regard, "[c]ircumstantial evidence under the direct method . . .
must itself show that the decisionmaker acted because of the prohibited
animus." Venturelli v. ARC Comm. Servs., Inc., 350 F.3d 592, 601 (7th
Mr. Saket has not produced sufficient direct or circumstantial evidence
to proceed under the direct method of proof. Mr. Saket claims that "the
epithets hurled at [him by employees other than Ms. Bourgeois] constitute
direct evidence of discrimination based on his national origin, evidence
which alone defeats American's motion." (Opposition at 9.) The Court
respectfully disagrees. Mr. Saket admitted that he had no reason to
believe that Ms. Bourgeois's decision to terminate him was motivated by
any discrimination and that she was not racist. (Saket Dep. 382-384.) He
further admitted that Ms. Bourgeois did not make any comments to him that
were discriminatory, insulting, or harassing in any way. (Def.'s St. ¶
73.) Moreover, stray remarks, unconnected to Mr. Saket's discharge and
made by such individuals as Mr. Weiland and Mr. Jensen cannot, as a
matter of law, serve as direct evidence of wrongful discharge based on
national origin. See, e.g., Fuka v. Thomson Consumer Elec., 82 F.3d 1397,
1403 (7th Cir. 1996); see also Maarouf, 210 F.3d at 754 (noting that
comments about Arabic heritage that were not tied to employee's
termination could not provide direct evidence of discrimination). Mr.
Saket also argues that Ms. Bourgeois's reliance on Mr. Wieczorek's
investigation in deciding to terminate Mr. Saket is direct evidence of national origin discrimination
because Mr. Wieczorek condoned Mr. Jensen's national origin harassment of
Mr. Saket by telling Mr. Saket to "forget everything" in response to a
complaint Mr. Saket filed against Mr. Jensen. The Court respectfully
disagrees. This statement, like the epithets, was unconnected to Mr.
Saket's discharge and cannot serve as direct evidence of national origin
discrimination. Fuka, 82 F.3d at 1403. Similarly, for Mr. Wieczorek and
Weiland's "statements to be sufficient circumstantial evidence under the
direct method, the remark[s] in question must be directly related to"
Mr. Saket's discharge. Venturelli, 350 F.3d at 602 (internal quotation
omitted). As already discussed, none of the statements identified by Mr.
Saket allegedly made by Mr. Wieczorek and Mr. Weiland, however, were
related to Mr. Saket's discharge. Therefore, Mr. Saket must rely on the
indirect method of proof to defeat American's Motion.
2. Indirect Method Of Proof
American only challenges the second element of Mr. Saket's prima facie
case namely, that Mr. Saket was meeting American's legitimate
employment expectations. Under the circumstances of this case, the Court
will address this element and the issue of pretext simultaneously because
the facts surrounding Mr. Saket's discharge are intertwined with the
issue of pretext. See Jones, 302 F.3d at 742; Fuka, 82 F.3d at 1404.
The Court holds that Mr. Saket has discharged his burden of showing
that a reasonable jury might find for him on the
meeting-employment-expectations and pretext issues even if he has just
barely done so. The Court's finding is based on the combination of the
following three factors none of which alone would have been enough to
forestall summary judgment: (1) the fact that American cannot locate any
of the original allegedly falsified records; (2) Mr. Saket's "cat's paw" theory as to the involvement of Mr. Wieczorek, who, despite
never having been alleged to have made any racist comments, allegedly
refused to discipline another American employee whom Wieczorek allegedly
knew was repeatedly harassing Mr. Saket based on his ethnicity; and (3)
the role that Mr. Weiland, another alleged racial harasser, played as one
source of information in the investigation that led to Mr. Saket's
First, the Court notes that American cannot locate the originals of any
of the safety records that Mr. Saket allegedly falsified. While American
argues that Mr. Saket and union officials allegedly saw the falsified
records in the past, and that the only issue is whether Ms. Bourgeois
sincerely believed that there were falsified safety records, the Seventh
Circuit has repeatedly cautioned that "[w]hen evidence bearing on a
particular matter lies within the exclusive possession of the party
seeking summary judgment, a court must be circumspect in evaluating the
movant's factual averments, particularly when that party bears the burden
of proof." Avery v. Mapco. Gas Products, Inc., 18 F.3d 448, 452 n.4 (7th
Cir. 1994); accord, e.g., Dey v. Colt Contr. & Dev. Co., 28 F.3d 1446,
1459 n.12 (7th Cir. 1994). A jury might possibly be willing to credit the
contention that American's "record falsification" basis for firing Mr.
Saket was a pretext (remember, Saket contends that he did not falsify any
records, and that he was told it was acceptable if he did not complete
every inspection before he left for Iran) if American cannot locate any
of the safety records that were falsified.
A second factor that might (at least in combination with the other two
factors) lead a reasonable jury to find in Mr. Saket's favor is Mr.
Wieczorek's leadership of the investigation that led to Mr. Saket's
firing. (Again, American denies any misconduct by Mr. Wieczorek, but for
present purposes, Mr. Saket's version must now be credited.) In this
regard, the Court notes initially that American's argument that Shager v. Upjohn Co., 913 F.2d 398
(7th Cir. 1990), and related authority is inapplicable is unpersuasive.
As the Seventh Circuit has explained, Shager teaches that "there can be
situations in which the forbidden motive of a subordinate employee can be
imputed to the employer because, under the circumstances of the case, the
employer simply acted as the `cat's paw' of the subordinate." Willis v.
Marion County Auditor's Office, 118 F.3d 542, 547 (7th Cir. 1997)
(emphasis added). The Seventh Circuit has reiterated this general
principle in several post-Shager cases. See, e.g., Maarouf, 210 F.3d at
754 (citing Shager). The issue, then, is whether Mr. Saket has produced
sufficient evidence so that a reasonable jury could find that Ms.
Bourgeois's decision to terminate him was manipulated by an individual
who harbored discriminatory animus towards Mr. Saket and that Ms.
Bourgeois was the unwitting "cat's paw" for the subordinate.
Mr. Wieczorek directed the investigation that led to Mr. Saket's
termination, and Ms. Bourgeois at least arguably relied on Wieczorek's
findings in deciding to discharge Mr. Saket. To be sure, Mr. Wieczorek is
conceded never to have made any racists comments to Mr. Saket.
Nonetheless, Mr. Saket has submitted evidence that Mr. Wieczorek failed
to discipline one of Mr. Saket's coworkers after that coworker was
allegedly making ethnic slurs against Mr. Saket, even though Mr.
Wieczorek allegedly knew that coworker had also previously called Mr.
Saket derogatory racist names. (Saket Aff. ¶ 54.) A reasonable jury
might conclude that Mr. Wieczorek's alleged response (telling Mr. Saket
to "forget about it" because the alleged harasser was confronting
difficult problems at home and did not mean anything) was the product of
non-prohibited factors for example, a desire simply to avoid conflict,
or sympathy for a coworker's alleged domestic problems. However, a
reasonable jury also might conclude that Mr. Wieczorek's failure to discipline that coworker reflects bias and
prejudice on the part of Mr. Wieczorek, who allegedly knew that the
alleged harasser had already made ethnic slurs in the past. Given Mr.
Wieczorek's role leading the investigation of Mr. Saket's alleged record
falsification and Ms. Bourgeois's reliance on Mr. Wieczorek's findings, a
jury might find that Wieczorek's alleged bias fundamentally tainted Ms.
Bourgeois's decision to terminate Mr. Saket.
Third, the role of Mr. Weiland as a meaningful source of information in
American's investigation of Mr. Saket also (at least in combination with
the other two factors indentified above) could lead a reasonable jury to
find for Mr. Saket In this regard, Mr. Wieczorek and his colleagues
relied upon Mr. Weiland's input in concluding that Mr. Saket had
falsified the fire extinguisher records. Notably, Mr. Weiland supervised
Mr. Saket's duties as a fire serviceman and Mr. Saket was purportedly
terminated for activities related to those duties. Mr. Saket has
submitted evidence that Mr. Weiland called him on a regular basis, among
other things, a "camel jockey," "dot head," "rag head," "terrorist," and
"hostage taker," as well as other vulgar, derogatory names. (Saket Aff.
¶ 29.) Mr. Saket also offered evidence that Mr. Weiland had stated to him
that "[t]he only work I have for terrorist people like you is painting
and bathroom repair. If you don't like it, leave." (Id ¶ 21.)
American responds to this evidence with a powerful combination of
evidence of its own. For example, American points to the unrebutted fact
that Mr. Saket was walking on very thin ice at the time of his
termination after having received a "final warning letter" from
American as a consequence of Plaintiff s own prior racist behavior such
that any falsification of records would likely prompt his termination.
This prior racist behavior involved an incident in which Plaintiff and a
coworker made a noose and were discussing it in front of an
African-American employee who was understandably offended, and a prior incident involving
Plaintiffs offensive ethnic slur against a Polish-American coworker.
American also contends that the alleged onslaught of racists comments
towards Mr. Saket are simply recent fabrications offered as an attempt to
forestall summary judgment. American further notes that the investigation
of Mr. Saket was carried out with substantial involvement from Mr.
Saket's union representative, and that the union later told Saket that he
had no discrimination case worth pursuing against American. American also
notes that there is no allegation that Mr. Weiczorek ever made any racist
comments, and that even if he somehow could be seen as impliedly racist
(as a result of his telling Plaintiff to "forget about" alleged racists
comments from a coworker), that Ms. Bourgeois had substantial personal
involvement in the decision to fire Plaintiff. And finally, American
notes that even Mr. Saket concedes that Ms. Bourgeois, the person who
fired him (at least formally, again the matter is in dispute) is conceded
not to be a racist and not to have ever made any racist comments to Mr.
Saket. All of these points may well make a compelling jury argument.
But, as previously discussed, the three factors identified above, at
least in combination, might lead a reasonable jury to find in Saket's
favor, at least as the record has presently been framed. It is improper
to grant summary judgment merely because the Court believes that the
movant is likely to prevail at trial. See, e.g., American Int'l Group,
Inc. v. London Am. Int'l Corp. Ltd., 664 F.2d 348, 351 (2d Cir. 1981). CONCLUSION
For the reasons set forth above, Defendant American Airline's Motion
for Summary Judgment is denied, subject to the limited caveat concerning
Plaintiff's concession that he is not advancing a stand alone harassment
claim. Mr. Saket has presented sufficient evidence to survive summary
judgment, at least where American cannot locate what is arguably relevant