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Alkhawaldeh v. Dow Chemical Co.

United States Court of Appeals, Fifth Circuit

March 15, 2017

AMMAR ALKHAWALDEH, Plaintiff - Appellant
v.
DOW CHEMICAL COMPANY, Defendant-Appellee

         Appeals from the United States District Court for the Southern District of Texas

          Before DAVIS, DENNIS, and SOUTHWICK, Circuit Judges.

          W. EUGENE DAVIS, Circuit Judge

         This is a Title VII case that the district court dismissed on summary judgment. For the reasons set out below, we AFFIRM.

         I.

         In January 2008, Appellee, Dow Chemical Company ("Dow"), hired Appellant, Ammar Alkhawaldeh, to serve as a Functional Scientist/Functional Leader ("FS/FL") in Dow's Epoxy Research and Development Group. As Ammar's direct supervisor, Dr. Bruce Hook was responsible for annually evaluating Ammar's performance.

         In October 2009, Hook rated Ammar a 1 - the lowest possible rating on Dow's 1-5 scale. Hook also placed Ammar on a Performance Improvement Plan ("PIP") in order to determine whether Ammar's performance was capable of rehabilitation.

         Ammar vigorously protested his rating to no avail. On April 2, 2010, Ammar filed his first EEOC charge, alleging discrimination in violation of Title VII, 42 U.S.C. § 2000(e) et seq. On November 17, 2010, Ammar filed the now-controlling EEOC charge, alleging discrimination and retaliation in violation of Title VII.

In November 2009, I reported to human resources that a trainer made offensive remarks to me because I am of Arab descent, dark skinned and/or from Jordan, and that he failed to accommodate my dietary restrictions. When my manger, Bruce Hooks, heard that I complained to human resources, he became angry, made offensive remarks to me and later told another employee that he (Mr. Hooks) wanted me to leave Dow. I was subjected to retaliation in multiple forms for engaging in protected conduct, including but not limited to placing me on a "performance improvement plan" when it was not merited. Company management also blocked me from transferring to another position with the company that would not require me to work for the managers I complained about. I successfully completed the performance improvement plan, but I was still not permitted to transfer to another position within the company; I was terminated by the company without justification, with effect October 31, 2010.

         After exhausting all administrative remedies, [1] Ammar sued Dow alleging discrimination and retaliation in violation of Title VII. Dow subsequently filed a motion for summary judgment, which the district court granted on December 31, 2015. We have jurisdiction to decide this appeal pursuant to 28 U.S.C. § 1291.

          II.

         We review a district court's grant of summary judgment de novo, viewing all facts and drawing all inferences in a light most favorable to the non-moving party.[2] Summary judgment is proper when there is "no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."[3]"On appeal we may affirm a grant of summary judgment on any legal ground raised below, even if it was not the basis for the district court's decision."[4]Where, as here, "the burden at trial rests on the non-movant, the movant must merely demonstrate an absence of evidentiary support in the record for the non-movant's case."[5]

         III.

         A.

         Ammar's Title VII claim relies entirely on circumstantial evidence, and is therefore subject to the burden-shifting framework outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Pursuant to this framework, the initial burden rests with the employee to produce evidence that he: (1) is a member of a protected class, (2) was qualified for the position that he held, (3) was subject to an adverse employment action, and (4) was treated less favorably than others similarly situated outside of his protected class.[6] This constitutes the employee's prima facie case. The burden then shifts to the employer to articulate a legitimate, non-discriminatory reason for the adverse employment action.[7] If the employer is able to articulate a legitimate, non- discriminatory reason for the adverse employment action, the burden shifts back to the employee to "demonstrate that the" employer's proffered reason is a "pretext for discrimination."[8]

         Ammar has failed to produce any evidence that he was treated less favorably than others "similarly situated" outside of his protected class. Therefore, his Title VII discrimination claim fails as a matter of law.

         The "similarly situated" prong requires a Title VII claimant to identify at least one coworker outside of his protected class who was treated more favorably "under nearly identical circumstances."[9] This coworker, known as a comparator, must hold the "same job" or hold the same job responsibilities as the Title VII claimant; must "share[] the same supervisor or" have his "employment status determined by the same person" as the Title VII claimant; and must have a history of "violations" or "infringements" similar to that of the Title VII claimant.

         Ammar identifies himself as a Muslim Jordanian Arab FS/FL in Dow's Epoxy Research and Development Group. Therefore, in order for Ammar to satisfy the "similarly situated" prong, he must identify at least one non-Muslim Jordanian Arab FS/FL in Dow's Epoxy Research and Development Group who received a 1 rating, as he did, and who completed a PIP, as he did, but who was not fired, as he was.[10]

         Ammar has failed to identify a single non-Jordanian Muslim Arab FS/FL in Dow's Epoxy Research and Development Group. This alone justifies dismissal of his Title VII claim. It is well-established that a Title VII claimant can only prove disparate treatment by presenting evidence that he was treated less favorably than others outside of his protected class.[11] "Title VII was enacted to prohibit discrimination on the basis of race, gender, and other legislatively enumerated grounds."[12] It was not enacted to promote "general fairness in the workplace, or . . . to protect against" the indiscriminate firing of employees.[13]

         Ammar has also failed to identify a single FS/FL who received a 1 rating, as he did, and who completed a PIP, as he did, but who was not fired, as he was. In fact, Ammar admits that no such comparator exists. He affirmatively states that he was the only Dow employee to receive a 1 rating in 2009, and he was the only FS/FL to be placed on a PIP throughout his entire tenure at Dow. Ammar therefore cannot prove that he was treated less favorably than others "similarly situated" outside of his protected class.

         B.

         Under our Title VII retaliation framework, the initial burden rests with the employee to produce evidence: (1) that he participated in an activity protected by Title VII, (2) that his employer took an adverse employment action against him, and (3) that there is a causal connection between the adverse employment action and the protected activity.[14] This establishes the employee's prima facie case, and gives "rise to an inference of retaliation."[15]The burden then shifts to the employer to articulate a legitimate non-retaliatory reason for the adverse employment action.[16] Once the employer articulates a legitimate, non-retaliatory reason for the adverse employment action, the burden shifts back to the employee to "demonstrate that the employer's [stated] reason is actually a pretext for retaliation."[17] In order to demonstrate pretext sufficient to defeat a motion for summary judgment, an employee must produce ...


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