Timing Is Not Enough – Retaliation Claim Fails For Employee Fired Nine Days After Filing A Complaint

Randi Klein Hyatt
Randi Klein Hyatt

An IT company analyst was not entitled to have a jury decide if he was fired in retaliation for complaining about race discrimination as he claims, versus the performance issues that his former employer identified.  Mr. Eyad Asi worked for Information Management Group (IMG) as an analyst and was assigned by IMG to work on a specific contract at Fort Meade, Maryland.  The contract on which he worked was managed on-site by Absolute Business Solutions Corp. (ABS) and involved security vetting of foreign nationals.  ABS provided direct, daily on-site supervision of Mr. Asi and his fellow analysts.

Initial reports were that Mr. Asi was performing satisfactorily during 2017 and early into 2018.  In early March 2018, however, Mr. Asi was one of several analysts who received an email from ABS’s Program Manager that they were not producing a sufficient number of daily reports and not meeting the weekly quota.  Within ninety minutes of receiving that email, on March 5, 2018, Mr. Asi emailed Human Resources officials with both IMG and ABS alleging race discrimination by various ABS and government employees and specifically claimed the discriminatory actions of these individuals resulted in his performance being called into question.  IMG took prompt action to address and investigate Mr. Asi’s claims which resulted in removing one individual from Mr. Asi’s assigned work area.  The ABS Program Manager who had sent the report deficiency email also confirmed for IMG that Mr. Asi was not in jeopardy of being removed from the contract.  Mr. Asi confirmed that he was able to continue working without issue.

Mr. Asi’s report production did not, however, improve in the days following the first email identifying the issue.  He completed only ten versus twenty-five expected reports and two of those ten reports had significant omissions.  At that point, nine days later, ABS directed IMG to remove Mr. Asi from the contract.  IMG complied and then terminated him for cause having been denied access to the customer’s facility.  Mr. Asi sued IMG for multiple forms of retaliation including that his termination was retaliatory under Title VII of the Civil Rights Act.

As to his Title VII claim, the parties agreed the only dispute was whether Mr. Asi could prove causation between his protected activity complaint on March 5 and his termination on March 14.  The federal trial court concluded that Mr. Asi established a prima facie case of causation because his IMG supervisor terminated him after personally investigating his discrimination claim filed only nine days earlier.  The temporal proximity, along with an earlier performance-based incentive and confirmation from ABS that he was not in danger of being removed from the contract met the relatively low standard necessary to establish a prima facie case.

IMG, however, was able to establish its legitimate, non-discriminatory reason for termination – his continued failure to meet the two-reports-per-eight-hour day quota, even after being told his output was going to be monitored.  The burden then shifted back to Mr. Asi to prove pretext.  Here is where the trial court dug in and confirmed that the evidence offered in support of his prima facie case would not also be sufficient to prove pretext.  The trial judge confirmed to prove pretext, a plaintiff must show both that the employer’s reason was false and that the retaliation was the real reason for the challenged conduct.  In other words, at the pretext stage, the plaintiff must show that retaliation was a but-for cause of the alleged challenged action.

Here, Mr. Asi could only point to the temporal proximity and an unsupported allegation that other analysts also had inadequate performances but were not terminated.  The court explored that Mr. Asi did not do a sufficient job during discovery in obtaining the relevant information about those other analysts that, if it did exist, could have possibly helped him to substantiate his claims.  Because he did not have anything in support, however, the temporal proximity was not sufficient.  The circumstantial evidence he used to make out his prima facie case, alone, is insufficient to create a genuine dispute of material fact and summary judgment on his Title VII claim of retaliation was appropriate.  The case is Asi v. Information Management Group, Inc., Case No. SAG-18-3161 (D. Md. Dec. 31, 2019).

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