concurring.
On reflection, the agreement between the majority and the dissenting opinions that for analytical purposes we must assume that Zamora was fired, as well as the mutual agreement of my esteemed colleagues that, a redressable claim remains as to the wrongful suspension, makes resolution of this appeal substantially easier. The unadorned question remaining is whether the evidence of discrimination supporting the wrongful suspension claim, coupled with the circumstances following Zamora’s demand for an apology, are adequate to raise a material question of fact on the wrongful termination claim.
Taking the evidence in the light most favorable to the plaintiff, when confronted with the demand for an apology, Tucker angrily replied “just get the hell out.” Based on this evidence, the evidence of discrimination supporting the wrongful suspension claim and the other evidence of discrimination in the record, a reasonable jury could reject Elite’s stated reason for terminating Zamora as pretext and conclude that Zamora was fired for discriminatory reasons. Close cases on the facts ought best be left to a jury. Thus I join Judge Holloway’s opinion.
Further, the issue discussed in footnote 7 of the majority opinion and footnote 4 of the dissent is not properly before this court. Zamora does not contest the district court’s ruling that 8 U.S.C. § 1324b(a)(6) is not incorporated in § 1324a(a)(2).