Muslim Pakistani Employee’s Religious and National Origin Harassment Claims Allowed to Proceed to Trial

In Rehmani v. Superior Ct., 204 Cal. App. 4th 945 (2012), the California Court of Appeal overturned the trial court’s order granting summary adjudication to the plaintiff’s former employer, Ericsson, Inc., concluding that triable issues of fact existed as to the defendant’s liability for harassment.  Id. at 948.

In this case, Ericsson fired the plaintiff after a human resources investigation concluded that he had sent two emails containing confidential information under the guise of one of his coworkers’ names.  Id.  at 948-49.  Just a few days after HR launched an investigation into the emails, the plaintiff reported to HR that he had experienced harassment at work, in that several Indian employees “had been uncooperative toward him,” showed a “lack of support and rudeness” toward him, and that one of the employees “humiliated him over technical matters.”  Id.  at 948.  After his termination, the plaintiff sued Ericsson and three of his coworkers–Amit Patel, Aneel Choppa, and Ashit Ghevaria–alleging harassment on account of his Pakistani nationality and his Muslim faith, and that his supervisor did not take remedial action when he reported the harassing conduct to him.

The Court first explained that California law “defines ‘unlawful employment practice’ to include harassment in the workplace based on religion or national origin,” and that “‘harassment’ in the workplace can take the form of ‘discriminatory intimidation, ridicule and insult’ that is ‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.’  Moreover, harassing conduct takes place ‘outside the scope of necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives.’  Thus, harassment focuses on situations in which the social environment of the workplace becomes intolerable because the harassment (whether verbal, physical, or visual) communicates an offensive message to the harassed employee.'”  Id. at 951 (citations omitted).

The Court went on to state that “[w]hether the conduct of the alleged harassers was sufficiently severe or pervasive to create a hostile or abusive working environment depends on the totality of the circumstances. ‘These may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.’  ‘Common sense, and an appropriate sensibility to social context, will enable courts and juries to distinguish between simple teasing or roughhousing … and conduct [that] a reasonable person in the plaintiff’s position would find severely hostile or abusive.’  As in sex-based harassment claims, ‘[t]he plaintiff must prove that the defendant’s conduct would have interfered with a reasonable employee’s [fn. omitted] work performance and would have seriously affected the psychological well-being of a reasonable employee and that [he or she] was actually offended.'”  Id. at 951-52 (citations omitted).

Applying these principles to this case, the Court stated:

In his complaint Rehmani generally alleged that Patel, Choppa, and Ghevaria, all Indian, were frequently rude, dismissive, and hostile toward him because he was a Pakistani and a Muslim.  At first the ‘hostility’ of these three took the form of unwillingness to help him with his projects. But it became more severe and ‘overtly discriminatory’ following the November 2008 attacks in Mumbai, India, by Pakistani terrorists.  Rehmani further alleged that management had disregarded his complaints about this behavior.

In February 2009 Patel approached Rehmani to ask him what was going on in Pakistan and Afghanistan.  According to the complaint, Patel “then said that Pakistan and Afghanistan need[ed] to be bombed and wiped out because of all the terrorist activity there and because it was spreading to India.”  Rehmani alleged that he reported this remark to his manager, director Afarin Daftari, who promised to speak to Patel about it but did not do so.

In April 2009, when Rehmani asked Patel for assistance with a task, Patel allegedly said, “You’re not going to blow me up, right?” Rehmani reported this incident to Daftari, who advised Rehmani to consider it a joke and “not worry about it.” When Rehmani insisted that she speak to Patel, Daftari said that she would talk to Patel’s manager, but Rehmani did not know whether she ever did so.

In May 2009 Choppa, a software development manager, allegedly approached Rehmani and asked, “What is going on in Pakistan?  It is a messed up country and it is creating a mess in the region and in India. There is lots of terrorism. Why don’t you people do something about it?”  

Rehmani also complained about being “humiliated and harassed” by Ghevaria in front of other coworkers.  While friendly with his Indian coworkers, when Rehmani asked for help, Ghevaria would yell at him and say he had no time for him.

On September 11, 2009, Rehmani took a sick day from work.  Peter Kim, another coworker, used Alex Yunerman’s computer to announce by e-mail that there were some Indian treats in the break room for Rehmani’s birthday.  When some of the employees went to the break room, Patel allegedly told them that Rehmani was out “celebrating 9/11 and planning terrorist attacks.”  Ghevaria sent Rehmani [an] e-mail wishing him [a] happy birthday and on the following Monday wished him happy birthday in person.  Rehmani answered the e-mail by speculating that it must be a joke, because his birthday was not until May 15. Rehmani warned Yunerman, Ghevaria, and Kim not to make “this type of joke to anyone,” because it could be turned into the basis of a lawsuit for discrimination.  Yunerman and Kim later apologized to Rehmani, and Kim explained that it was Patel’s idea to send the e-mail.  Rehmani stated in his declaration that the e-mail and jokes made him feel “very stressed out, humiliated, and physically ill at the workplace.”

Id. at 953-54.

The Court further stated:

Amit Patel’s suggestion that the country should be “wiped out,” could, like Choppa’s remark, be interpreted either as an angry response to political disputes in the Middle East or as hostility toward Rehmani based on his Pakistani background.  Patel explained his attitude by pointing out to Rehmani that the unrest in Afghanistan and Pakistan was affecting all the neighboring regions, including India.  But Patel’s joke about Rehmani blowing him up, the alleged joke about Rehmani being at home celebrating 9/11 or planning an attack, and Patel’s alleged harassment of other non-Indian employees could, taken together, convince a jury that this conduct was part of a hostile work environment to which Rehmani was subjected at Ericsson.   Rehmani reported the blowing-up remark to Daftari, who said she would speak with Patel’s manager, but he “never received any indication” that she followed through.  Rehmani also overheard Patel disparaging some of their Chinese coworkers, referring to them generally as “Chinkoos.”

Rehmani’s complaints about Ashit Ghevaria mostly pertained to Ghevaria’s angry, disrespectful treatment of non-Indian engineers.  Although Ericsson persists in the assertion that this evidence is immaterial because the alleged behavior did not specifically target the classification to which he belonged, Rehmani’s underlying grievance is directed toward not only the Indian employees’ disparaging comments about Pakistanis, but also the expression of their general attitudes toward non-Indians, which created the hostile working environment that Rehmani claims seriously affected his work performance and psychological well-being.  In any event, Rehmani also asserted that “at various times” during 2009 Ghevaria became increasingly hostile whenever Rehmani asked for technical help, yelling at him to go away and staring at him with an “extremely angry look” until Rehmani went away. In his declaration Rehmani stated that Ghevaria “did not act this way toward his Indian coworkers when they asked him for assistance.”

Id. at 954-57 (emphasis added).

Based on these facts, the Court concluded that “[a] jury might agree with Ericsson that none of the alleged acts by Choppa, Patel, or Ghevaria was based on Rehmani’s national origin or religion, and such a conclusion would refute the assertion of Ericsson’s liability in the first two causes of action.  Or a jury might determine that Ericsson was not liable for the hostile work environment Rehmani allegedly experienced because Daftari adequately responded to Rehmani’s complaints about Ghevaria and others.  But considering these employees’ conduct in the overall context of Rehmani’s allegations of hostility by Indian employees toward non-Indians, we cannot determine as a matter of law that the evidence supplied by Ericsson establishes that Rehmani will not be able to convince a trier of fact that he experienced a hostile environment and that his reports of mistreatment were ignored by his supervisor.”  Id. at 957.

The Court also stated:

Ghevaria’s behavior might be attributed to Ghevaria’s temperament, Rehmani’s approach in soliciting help, residual friction from past encounters, work pressures, or simply a personality clash between the two; but those are questions for a jury, not the court, to determine. . . . [And] Ericsson is correct that actionable harassment ‘cannot be occasional, isolated, sporadic, or trivial[;] rather theplaintiff must show a concerted pattern of harassment of a repeated, routine or a generalized nature.’  But Rehmani offered evidence of a larger picture than just a few interpersonal squabbles. His declaration, together with testimony from  coworkers, suggests rudeness, taunting, and intimidation from Indian engineers toward their non-Indian colleagues.  Rehmani’s evidence in support of his discrimination claims—notably Ericsson’s favoritism toward Indian engineers in hiring, promotions, salary increases, and work assignments and the managers’ practice of assigning non-Indian employees to tasks that help the Indian employees look impressive—may also be relevant in proving a hostile workplace.  Nor is it inconceivable that he could prove that he suffered ‘extreme and severe mental anguish and emotional distress’ which was reasonable under the circumstances presented.  

Id. at 957-59 (emphasis added, citations omitted).

The Court further concluded:

Whether an employee was subjected to a hostile work environment is ordinarily one of fact.  Having independently reviewed the evidence supplied by both parties, we cannot conclude that Rehmani will be unable to establish that he experienced harassment at work, for which Ericsson is liable.  While Rehmani’s case may be too weak to withstand the scrutiny of a jury at trial, at this stage of the litigation we cannot say as a matter of law that the evidence he wishes to adduce is insufficient in the aggregate to establish a claim for harassment based on national origin.  The trier of fact at the upcoming trial thus should be permitted to determine either that Rehmani’s claims have merit or, instead, that his interpersonal difficulties at work were unrelated to Indian sentiment toward non-Indian coworkers—or alternatively, that his complaints to Daftari were insufficient to trigger an investigation into harassment within the meaning of the FEHA.  Rehmani’s claim of harassment based on religion may be even less tenable; but considering the current international climate of tension between Muslims and non-Muslims and that factor’s interaction with relations between various countries (including Pakistan and India), we cannot regard this cause of action as independent of the evidence related to national origin.  

Id. at 959.

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Bernstein & Friedland, P.C. is a boutique employment law firm in Los Angeles specializing in wrongful termination, discrimination, harassment, retaliation, and unpaid wage and overtime matters.  Please visit our website at www.laemploymentcounsel.com to learn more about us.

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