C.A. Revives Muslim’s Bias Suit Against Airline

Tuesday, October 13, 2009

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C.A. Revives Muslim’s Bias Suit Against Airline

Justice Says Case Is ‘Poster Child’ for Criticism of Summary Judgment Abuse

By KENNETH OFGANG, Staff Writer

The First District Court of Appeal Friday reinstated a suit by a former mechanical supervisor who claims he was routinely harassed by co-workers, and eventually fired by United Airlines, because he is Pakistani and Muslim.

Div. Two reversed a summary judgment in favor of the airline, saying San Mateo Superior Court Marie Wiener was “manifestly wrong” when she sustained, without explanation, more than 700 evidentiary objections to the plaintiff’s papers and granted what “may well be the most oppressive motion ever presented to a superior court.”

Justice James Richman called the case a “poster child” for criticism of abusive use of liberalized summary judgment rules, particularly in employment cases.

The justice noted that his panel had been presented with “a record the likes of which we have never seen,” including more than 5,400 pages of moving, opposing, and reply papers. He said the trial judge clearly had not read all of the papers, a defalcation that “cannot be condoned [but] can perhaps be understood, as we hesitate to speculate how long it would take a trial court to meaningfully digest over 2,200 pages of separate statements, analyze and rule on 764 objections set out in 325 pages, review it all in light of the applicable law, and then write a proper order.”

In a footnote, Richman suggested that defense counsel, from the law firm of Littler Mendelson, may have followed a large-firm practice of assigning the most junior lawyer working on a case to “do the objections.” The justice further opined that “a wiser practice would be to have the most experienced lawyer, presumably with a better understanding of the law of evidence, deal with the objections.”

Iftikhar Nazir, a 16-year employee of United, was terminated in 2005, ostensibly because of an incident with a female employee of an outside service provider. Nazir claims his firing was actually the culmination of a pattern of harassment and discrimination that lasted more than a decade.

Nazir said he was called various names, both to his face and behind his back, including “sand flea,” “sand head,” “rag head,” “Pak Man,” “Paki,” and “camel jockey.” He said his car was vandalized; he was reported to the FBI in 2003 as a “possible terrorist” after a friend left him a voice mail message in Urdu; his office and computer were vandalized; and his complaints to his supervisor, to the company’s local human resources department, and to senior management in Chicago went unheeded.

His complaint named the airline and a supervisor, Bernard Peterson, as defendants. He pled 14 causes of action, including harassment and discharge based on religion, color, ancestry and national origin and retaliation in violation of the Fair Employment and Housing Act and public policy; failure to prevent discrimination and harassment; discharge based on disability; discharge in retaliation for exercise of rights under the California Family Rights Act; breach of contract; bad faith; fraud; battery; and intentional infliction of emotional distress.

The disability and family leave causes of action were later abandoned.

Wiener granted summary judgment, saying the plaintiff presented insufficient evidence to support any of his claims, and that he also failed to exhaust administrative remedies with regard to his FEHA harassment claims. She said that “[d]espite its girth, Plaintiff’s opposition to the separate statement of material facts is mostly verbiage.”

Richman expressed wonderment as to why the judge commented on the length of the plaintiff’s submissions and not those of the defendants, in particular a 297-page “reply separate statement” and 153 pages of exhibits and evidence in support of the reply, the filing of which do not appear to be authorized by the relevant statute.

The justice also questioned whether defendants were serious in objecting that virtually everything the plaintiff submitted in opposition, including plaintiff’s description of the specific acts of harassment to which he was subjected, as lacking in foundation or being “speculative” or as including “improper opinion” or being argumentative.

“Can this be serious?” Richman asked rhetorically. “Can counsel see themselves rising at trial with those objections while plaintiff is testifying before a jury?”

Turning to the merits, Richman said the plaintiff’s testimony was sufficient to establish triable issues as to harassment, discrimination and retaliation.

He also concluded that Nazir had exhausted administrative remedies with respect to the harassment claims by detailing his claims in his various submissions to the Department of Fair Employment and Housing.

There were a series of such filings, Richman explained, commencing with a pre-complaint questionnaire in July 2005 and culminating in the filing of formal complaints in October 2005 and in May 2006. The trial judge erred, he said, in concluding that the harassment allegations were raised for the first time in the May 2006 complaints and were barred because the acts had occurred more than a year earlier.

Richman cited the pre-complaint questionnaire, in which Nazir said he was “harassed” from “1991-2005” and that “discrimination and harassment have been nonstop since 1991.”

The justice also concluded that even if the questionnaire was insufficient, the formal complaints were timely because of the continuing violation doctrine.

Richman also said the plaintiff had presented sufficient evidence to go to trial on the claim that the March 2005 incident involving Iris Avellan, a supervisor with a contractor providing janitorial services to the company, was not the true reason for his termination but rather a pretext.

United’s version of the episode was that Nazir engaged the woman in a discussion of her personal life, that Nazir asked her if she “tough,” and that he grabbed her hand and “quickly slammed [her] hand and arm on the table.”

Nazir claimed that he and Avellan had engaged in playful and consensual arm wrestling.

Richman said there were aspects of the internal investigation that were sufficiently troubling to suggest that the firing was pretextual. He noted that Peterson—“a person who at least inferentially had an axe to grind”—and a labor relations specialist who had a close working relationship with Peterson oversaw the investigation, that Avellan admitted signing a statement that was prepared for her by two other people, and that persons who might have confirmed Nazir’s version of the facts were not interviewed.

Despite those features, Richman said, the trial judge “bought into [United’s] claimed version of facts whole-heartedly,” declaring at several points during the summary judgment hearing that Nazir was guilty of “gender harassment and unwanted physical contact” with Avellan, of “grabbing the woman and doing this to her in the context of employment,” and of “manhandling” her.

When the plaintiff’s lawyer noted that such descriptions were only consistent with the defendant’s version, not that testified to by the plaintiff, Wiener responded that the plaintiff “grabbed her arm and smacked it to the plaintiff.”

Richman explained that while summary judgment is no longer viewed as a “disfavored remedy,” “many employment clases present issues of intent, and motive, and hostile working environment, issues not determinable on paper.”

He continued:

“Such cases, we caution, are rarely appropriate for disposition on summary judgment, however liberalized it be.”

Nazir’s attorney, Phil Horowitz of San Francisco, said yesterday that the case will have a significant impact on employment law. He noted that he had already received about 100 e-mails from employment lawyers who had read the opinion, many saying they expected to cite it in cases where they are opposing summary judgment motions.

About one-third of all employment cases are being dismissed on summary judgment, “many of them improperly,” Horowitz told the MetNews. “I think we are going to see a sea change in summary judgment motions. The days of defendants gaining summary judgment in cases with disputed facts are over. The day of oppressive summary judgment motions is over....The days of reply evidence in summary judgment motions are over.”

Nancy Pritikin of Littler Mendelson, who was lead counsel for United in the trial court and argued on appeal, was unavailable yesterday for comment.

The case is Nazir v. United Airlines, Inc., A121651.