Rashid Arraleh v. County of Ramsey Terry Zurn, Individually

HEANEY, Circuit Judge,

dissenting.

I respectfully dissent. In my view, there are material issues of fact that made summary judgment inappropriate on Rashid Arraleh’s claims of hostile work environment, failure to hire, and retaliation.

Arraleh is a black Muslim immigrant from Somalia. During his six-month tenure of employment with Ramsey County, he was directly subjected to the following comments:

• “Today, your skin doesn’t look as white as it normally does” (Appellant’s App. at 48);
• Being referred to as “Mr. Cocoa”, (id. at 59-61);
• “Is your hair for real?” (id. at 56);
• “It’s very difficult to work with you people” (id. at 52);
• African-Americans are “very difficult to work with” because they are “very emotional” and “take things too personally” (id. at 43); and
• “[Bjlack people are expected to leave their blackness behind” (id. at 41).

Given this litany, it is obvious that this is not a case of an isolated, backhanded comment. Rather, it was a stream of comments that reveal an office that was hostile toward Arraleh because of his race and religion. This behavior infected the entire office environment, as Arraleh’s co-workers observed discriminatory actions and behavior. See Leibovitz v. New York City Transit Auth., 252 F.3d 179, 190 (2nd Cir.2001) (noting that “evidence of harassment directed at other co-workers can be relevant to an employee’s own claim of hostile work environment.”) Mary Haigh attested that a co-worker named Mary Michael vehemently stated, “Muslims should be killed.” (Appellant’s App. at 1.) In fact, Michael’s comments about Arraleh, in particular, and Muslims, in general, were so volatile and angry that Haigh tried to avoid mentioning Arraleh’s name and refused to discuss anything related to Muslims and the Middle East.

Waldhauser attested that she, too, heard a steady stream of disparaging comments about Muslims and African immigrants, including the statement that “Muslims should all be killed.” (Id. at 12.) These views became personalized to the point that Arraleh was subjected to intense scrutiny by his co-workers, several of whom repeatedly called Waldhauser to learn if Arraleh had missed or double booked appointments. This happened even though Waldhauser testified that Arraleh’s immediate supervisor had herself missed numerous appointments on a project she shared with Waldhauser.

Loretta Novak, while working in another location, attested she saw similar behavior toward Arraleh. He was criticized for missing or double booking appointments, even though the same behavior from a similarly situated white employee was regularly tolerated. Even though Waldhau-*981ser and Novak worked in separate offices, they found the behavior so unacceptable that they complained to Zurn that Arraleh was facing unwarranted hostility. Moreover, Waldhauser and Novak met with Patricia Brady, WFS’s director, after Arra-leh’s employment term finished to again complain about the discrimination he suffered.

Arraleh clearly felt he was the victim of hostility based on his race and religion when he overheard a county planner say, “[g]iving [Arraleh] a job is like raising terrorist kids,” (id at 66) and being directly told by a supervisor that he needed to leave his blackness at the door. Objectively, three coworkers felt strongly enough about the nature and effect of these comments that two reported it to Zurn and a third acted by refusing to mention Arra-leh’s name. In other words, three reasonable, objective coworkers found that these bigoted attitudes toward Arraleh were prevalent; two of those coworkers believed it resulted in Arraleh being subjected to a heightened level of job scrutiny.

In this instance, Arraleh alleges he was subjected to daily comments and actions over a relatively short period of time-six months. Arraleh also presents the testimony of coworkers who found the actions and comments directed at Arraleh equally offensive and believed that these attitudes subjected Arraleh to a stricter code of conduct than was applied to white coworkers. I have no trouble concluding that Arraleh produced sufficient evidence to make out a submissible case on his hostile work environment claim.

The majority also fails to take into account the discriminatory impact of these attitudes on Arraleh’s failure-to-hire claim. Even though Arraleh’s coworkers were not his official superiors, their impact on this decision was influential. A direct evidence inquiry is not limited to those officially entrusted with decision-making responsibilities. If a reasonable factfinder can conclude that a third party was closely involved in the decision-making process, then the analysis can extend to those who unofficially influence the decision-making process. Mohr v. Dustrol, Inc., 306 F.3d 636, 641-42 (8th Cir.2002), overruled on other grounds in Desert Palace, Inc. v. Costa, 639 U.S. 90, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003).

In Mohr, this court found a reasonable inference between the decision not to hire Mohr and decisions made by an intermediate supervisor who was not directly responsible for hiring or firing Mohr. The Mohr decision relied on the precedent that “[c]ourts [should] look beyond the moment a decision was made in order to determine whether statements or comments made by other managerial employees played a role in the ultimate decisionmaking process.” Id. at 641 (quoting Gagnon v. Sprint Corp., 284 F.3d 839, 848 (8th Cir.2002)). Even if the ultimate decision to not hire or to fire was free of discriminatory animus, this court has held that we cannot sterilize a seemingly objective decision when it is the indirect product of such animus. Id. at 641-42.

As a contract employee, Arraleh’s unofficial superiors were his permanent coworkers. Their exacting scrutiny and constant complaints regarding Arraleh led ultimately to the decision not to hire him. As Novak and Waldhauser attested, these complaints appeared motivated by discriminatory animus toward Arraleh. And it is reasonable to assume that given Haigh’s testimony, any hope of working alongside his permanent coworkers was stymied by their attitudes toward blacks and Muslims. For the purpose of summary judgment review, the involvement of Arraleh’s coworkers in the decision-making process and their alleged comments about blacks and Muslims sufficiently establish a specif*982ic link between the decision not to hire and the alleged discriminatory animus.

Lastly, Arraleh articulates a case for retaliation that should be presented to a jury. The majority states Arraleh failed to establish a factual question of causation. A plaintiff may use circumstantial evidence to establish a causal inference by showing a temporal proximity between the protected conduct and the adverse action. EEOC v. Kohler Co., 335 F.3d 766, 773-74 (8th Cir.2003); see also Smith v. Allen Health Sys., 302 F.3d 827, 833-34 (8th Cir.2002). Here, there were merely three weeks between Arraleh’s discrimination complaint and Zum’s decision not to hire him. Inconsistent enforcement of employment standards is also relevant to the retaliation inquiry. Kohler, 335 F.3d at 775-76. The majority accepts Arraleh’s alleged deficiencies as the true basis for Zurn’s decision not to hire Arraleh. However, these deficiencies are in dispute. As noted previously, there is strong evidence showing that Arraleh was unfairly scrutinized by his fellow employees. The record reflects Zurn knew of, yet did nothing to correct, this skewed standard; when Novak and Waldhauser reported it to him, he refused to discuss it with Waldhauser, and yet Zurn never reprimanded Arraleh for this alleged behavior. Finally, Waldhauser gave a positive evaluation of Arraleh’s work and noted that many of the county’s clients preferred to work with Arraleh. In short, the idea that Arraleh was not permanently hired because of his poor work is, at the very least, suspect and disputed. Rather than allow the district court to be the arbiter of fact in this instance, the material issues of fact'in this claim should be decided by a jury.

For these reasons, I would reverse the grant of summary judgment and remand to the district court for further proceedings.