1. Are you persuaded by the state’s evidence that it had an individual of a different national origin who was treated similarly to Herawi? If Ward (or other managers) treated everyone equally poorly, perhaps there is no national origin claim. What if Ward’s defense is simply that her poor treatment of Herawi had nothing to do with national origin, but that she just really did not like Hewari, specifically? Would that be an acceptable defense and could it have saved the state’s case?

2. The court explains that pretext may be based on comments depending on “whether their substance, context, and timing could permit a finding that the comments are causally related to the adverse employment action at issue.” What elements would you look to in order to find pretext, if you were on a jury?

3. The court explains that timing, alone, would not be enough to satisfy the causality requirement of retaliatory discharge. Given the facts of this case, if you were in charge of the department, and if Hewari truly were not performing at an acceptable level and you wished to terminate her after all of these circumstances, how might you have better protected the department from a retaliatory discharge claim?

Issue: Whether there were legitimate non-discriminatory reasons for terminating an employee who alleged national origin discrimination and retaliation.

Facts: Herawi is an Iranian medical doctor who also holds a PhD. Her employment was terminated. The actions toward her took place just after 9/11 when feelings were running high against Iranians. She filed a complaint against the defendant, the state Department of Forensic Sciences, alleging national origin discrimination and retaliation. The state responded that it had legitimate non-discriminatory reasons for terminating her.

During the relevant time period, Herawi’s supervisor in the Montgomery office [of the Alabama Department of Forensic Sciences] was Dr. Emily Ward. Herawi, like all state employees, was a probationary employee for her first six months on the job.

In this case, Ward made remarks related to Herawi’s national origin on three occasions. On November 7, 2001, Ward threatened to report Herawi’s national origin to law enforcement agencies. On January 2, 2002, Ward told Herawi that she was getting calls asking who Herawi was and why she was working there; Ward suggested that she was getting these calls because of Herawi’s accent. Finally, on March 7, 2002, Ward told Herawi that no one liked her, that she did not belong at the department, that she should leave, and that her English was bad.

Events came to a head on March 28, at a meeting attended by Herawi, Ward, Bailey, and Steve Christian, the department’s personnel Manager. Herawi claims that she was terminated during the meeting and that when she met with Christian shortly after the meeting, he told her it was unofficial policy that terminated employees could submit a letter of resignation. Memoranda written by Ward, Bailey and Christian present slightly different accounts.

Herawi submitted a letter of resignation on April 1, 2002. A letter from Downs, dated April 18, confirmed Herawi’s “separation from employment” at the department effective April 19. Downs’s letter states that the reason for Herawi’s separation is that she continued “to require additional training in autopsy procedures and failure to properly use the chain of command.”

Decision: The Forensic Department moved for summary judgment on the ground that its decision not to offer her a permanent position was based on legitimate, nondiscriminatory reasons.

For the reasons given above, it is ordered as follows:

(1) The motion for summary judgment, filed by defendant Alabama Department of Forensic Sciences on November 12, 2003 (doc. no. 20), is granted with respect to plaintiff Mehsati Herawi’s hostile-environment claim.