The U.S. Court of Appeals for the Fifth Circuit recently affirmed the pre-trial dismissal of a discrimination and retaliation lawsuit, providing a good reminder of how an effective defense that challenges whether a plaintiff has met his or her burden of proof can keep a case from going to a jury.
In Alkhawaldeh v. Dow Chemical Company, No. 16-20069 (5th Cir. Mar. 15, 2017), the plaintiff was a Muslim Jordanian who was fired for consistent poor performance. He then brought a lawsuit under Title VII of the 1964 Civil Rights Act (Title VII) alleging that he was discriminated against based on race, color, religion, and national origin, and that he was also the victim of unlawful retaliation.
The Fifth Circuit, agreeing with the trial court, found that based on the undisputed facts, the employee’s discrimination claims could not survive because he was unable to identify at least one coworker outside his protected class who was treated more favorably under similar circumstances. The plaintiff’s retaliation claim likewise failed because he could not show that Dow’s legitimate, nondiscriminatory reason for firing him — persistent poor performance — was a pretext.
A copy of the Fifth Circuit’s decision in Alkhawaldeh v. Dow Chemical Company is available here.
Members of the Equal Employment Advisory Council (EEAC) can read more here.