Monica Guessous v. Fairview Property Investment

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 1:14-cv-00224-GBL-IDD. [999879413]. [15-1055]

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-1055

MONICA GUESSOUS,
Plaintiff - Appellant,
v.
FAIRVIEW PROPERTY INVESTMENTS, LLC,
Defendant - Appellee.
----------------------------------EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Amicus Supporting Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (1:14-cv-00224-GBL-IDD)

Argued:

December 9, 2015

Before TRAXLER,
Judges.

Chief

Judge,

Decided:

and

GREGORY

and

July 6, 2016

DIAZ,

Circuit

Vacated and remanded by published opinion. Judge Gregory wrote
the opinion, in which Chief Judge Traxler and Judge Diaz joined.

ARGUED: Arinderjit Dhali, DHALI PLLC, Washington, D.C., for
Appellant.
Hans Paul Riede, ODIN, FELDMAN & PITTLEMAN, P.C.,
Reston, Virginia, for Appellee.
Gail S. Coleman, U.S. EQUAL
EMPLOYMENT
OPPORTUNITY
COMMISSION,
Washington,
D.C.,
for

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Amicus Curiae. ON
BRIEF: Lauren
Friend
McKelvey,
ODIN,
FELDMAN & PITTLEMAN, P.C., Reston, Virginia, for Appellee.
P. David
Lopez,
General
Counsel,
Jennifer
S.
Goldstein,
Associate General Counsel, Lorraine C. Davis, Assistant General
Counsel, Office of General Counsel, U.S. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION, Washington, D.C., for Amicus Curiae.

2

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GREGORY, Circuit Judge:
On February 28, 2014, Monica Guessous filed suit against
Fairview Property Investments, LLC (“Fairview”).
six

claims

in

her

complaint:

pursuant

to

42

She alleged

U.S.C.

§ 1981,

Guessous asserted claims for race discrimination (“Count I”),
hostile work environment (“Count II”), and retaliation (“Count
III”); and pursuant to Title VII of the Civil Rights Act of
1964,

42

U.S.C.

§ 2000(e)

et

seq.,

she

asserted

claims

for

discrimination based on religion, national origin, and pregnancy
(“Count

IV”),

hostile

work

retaliation (“Count VI”).

environment

(“Count

V”),

and

On December 16, 2014, the district

court granted summary judgment for Fairview on all six counts.
For

the

summary

reasons

that

judgment

on

follow,
all

we

counts

vacate

the

and

remand

order

granting

for

further

proceedings.

I.
We recite the facts drawing reasonable inferences in favor
of the non-movant, Monica Guessous.

Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986).
A.
Fairview manages several real estate properties and engages
in real estate leases and sales.

Guessous is an Arab-American

Muslim woman from Morocco who worked for Fairview from February
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2007 until March 2013 when she was terminated from her position
as a bookkeeping assistant.

She was terminated by her direct

supervisor, Greg Washenko, who became Fairview’s Chief Financial
Officer (“CFO”) in October 2008.

Prior to Washenko’s arrival,

Guessous had been supervised by Peter Arey who was Fairview’s
Vice President at that time.
In

deposition

testimony,

Guessous

recounted

numerous

allegations of mistreatment by Washenko during the final fourand-a-half years of her employment at Fairview. 1

Guessous and

Washenko met for the first time at a meet-and-greet event held
in October 2008, shortly after Washenko was hired.

At that

first meeting, Washenko asked Guessous where she was from and,
when she replied that she was Middle Eastern, he said that in a
previous job he had worked with “a bunch of Middle Easterners
and they are a bunch of crooks, [who] will stop at nothing to
screw you.”

J.A. 207-08. 2

From that point forward, Washenko

exhibited a habit of discussing Moroccans, Muslims, and Middle
Easterners in disparaging and offensive ways.
January

2010,

after

reading

news

reports

For example, in
about

Islamic

1

Unless noted otherwise, quotations of conversations
between Guessous and Washenko come from Guessous’ testimony.
They are not direct quotes from Washenko, but Guessous’
recreation of those past statements.
2

References to “J.A.” refer to the Joint Appendix submitted
by the parties to this appeal.
4

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terrorism,

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Washenko

came

out

Pg: 5 of 46

of

his

office

and

walked

Guessous’ desk to ask her, “Why do Muslims hate America?”
216.

to
J.A.

Guessous replied that she was Muslim and did not hate

America.
to

which

She further stated that “Muslims are not terrorists,”
Washenko

responded,

“Yeah,

sure.

Like

my

buddy

says . . . not all Muslims are terrorists, but most are.”
216.

J.A.

Guessous testified that Washenko’s body language during

that conversation made her feel “cornered” and “intimidated,” in
particular because he stood over her while she sat at her desk.
On another occasion in May 2010, 3 following a series of
Hamas

attacks

on

Israel,

approach Guessous.
Guessous
Instead,

Washenko

again

left

his

believed

he

Washenko

are

terrorists.”

to

When he said, “I need your intake on this,”
was

bringing

proceeded

to

her
tell

something

to

her,

could

“I

understand this whole suicide bomber thing. . . .
Israelis

office

being
J.A.

bombed
217.

every
Guessous

day

by

to

on.

never

These poor

Muslim

attempted

work

Palestinian
explain

that

“[s]uicide is prohibited in the Koran” and that it “specifically
says that it does not condone killing innocents.”

J.A. 217.

She also told him she was not Palestinian and that she “ha[d] no
3

The
district
court
appears
to
have
committed
a
typographical error in citing this event as occurring in May
2012. Guessous v. Fairview Prop. Investments, LLC, No. 1:14-CV00224-GBLIDD, 2014 WL 7238993, at *3 (E.D. Va. Dec. 16, 2014).
Deposition testimony and Guessous’ complaint both indicate that
it occurred in 2010.
5

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business speaking about” the issue.
occasion,

in

February

2011

J.A. 217.

during

the

Arab

On yet another
Spring,

Washenko

again left his office to approach Guessous at her desk and ask,
“What’s up with Egypt and why are the Muslims killing people?”
J.A. 239.

Guessous testified that by this time she had become

frustrated with these kinds of inquiries and tried to explain to
him that she was not Egyptian and had no particular insight into
the uprising.
In fact, Washenko consistently conflated Guessous’ identity
as

a

Moroccan

Muslim

with

other

Middle

Eastern

identities,

blurring the lines between race, ethnicity, national origin, and
religion.

For example, in late 2011, Guessous was called to the

basement of one of Fairview’s buildings where a restaurant was
located.
the

She was then asked to act as a translator for one of

restaurant’s

employees

who

was

a

Farsi-speaking

Persian

Iranian.

When Guessous told Washenko that she did not speak

Farsi,

replied,

he

there be

some

“‘So

secret

[]

you

don’t

language

speak
that

Iranian?

you

all

Shouldn’t

understand?’”

Guessous v. Fairview Prop. Investments, LLC, No. 1:14-CV-00224GBLIDD, 2014 WL 7238993, at *5 (E.D. Va. Dec. 16, 2014). 4

4

The word “Muslim” has been excised from our quotation
where indicated.
Although the district court relied on
Guessous’ own complaint, in her deposition testimony she did not
include the word “Muslim” in her quotation of Washenko.
J.A.
246.
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Washenko continued to direct these kinds of inquiries at
Guessous throughout 2011.

In August or September of that year,

as Muamar Gaddafi’s rule in Libya was coming to an end, Washenko
asked Guessous to explain the situation in that country to him.
Again, she responded that she was not Libyan and did not have an
interest in events going on there.
sent

an

email

to

her

Around this time, Guessous

brother-in-law,

a

police

officer,

explaining some of the issues she was having with Washenko and
asking for his advice.

Among other complaints, she said,

I am sick and tired of been the 411 for issues
relating to a Muslim terrorist and or a Islamic
country’s national conflicts and or cultural issues or
weirdness that he is trying to find out about. I feel
targeted for my believes and my ethnicity and culture
and for all the year I have been in the good all
united stated of America I have never felt so inferior
to anyone as I am feeling at this point.
J.A. 329 (errors in original).
But being dragged into uncomfortable, and often offensive,
discussions on current events was hardly the only behavior to
which Guessous objected.
personal

in

Washenko

spent

several

Moroccan

name,

“Mounia,”

name,

nature.

Much of Washenko’s conduct was more

“Monica.”

For

example,

months

referring

instead

Guessous,

beginning

2014

to

of

her

WL

7238993,

in

early

Guessous

chosen
at

2010,

by

her

Americanized
*3.

While

Fairview asserts that Washenko desisted at Guessous’ request,
Guessous herself stated in the same 2011 email to her brother7

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in-law that she had “struggled for quite some time to have him
call me Monica instead of Mounia,” J.A. 328, and noted in her
complaint

that

Washenko

only

stopped

“[a]fter

repeated requests and protests,” J.A. 16.
same

year,

Guessous

wished

Washenko

happens to fall on September 11th.

a

2-3

months

of

In September of that
happy

birthday,

which

Washenko responded to his

sole Muslim Arab employee’s well wishes by saying that each year
on his birthday he was “reminded of the terrorist attacks by the
Muslims” and then walking out of his office.
Another

of

their

conversations

in

J.A. 235.

2010

turned

personal

after Washenko initiated a discussion on the differences between
Christianity

and

Islam.

First,

Washenko

asked

Guessous

to

describe Islam to him, and in turn he described Christianity to
her.
and

Guessous then began to explain that Judaism, Christianity,
Islam

are

all

Abrahamic

religions,

that

their

adherents

worship the same God, and that Islam treats Jesus as a prophet
who was raised to Heaven by God and who will return to Earth.
Although initially uncomfortable with the conversation, as she
explained

Islam

to

Washenko,

emphasizing

the

similarities

between their faiths, Guessous testified that she began to feel
“happy because I was like I’m doing something good.”

J.A. 225.

But Washenko was apparently incensed at the suggestion, saying,
“‘No Monica!

We are not the same, you might think we are, but

we are not!

We do not believe in the same God!’ and then
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storm[ing] away.”

Guessous, 2014 WL 7238993, at *3.

was

reaction,

hurt

by

the

recalling

in

testimony

Guessous
that

the

statement, “We’re not the same . . . . made me feel like I’m not
even a human being.”

J.A. 226.

Washenko’s personal and offensive comments continued into
2011 and 2012.
new

car

for

Volkswagen
reliable.
of

testified

son.

because

from
that

believe . . .
in

his

Guessous

her

mother

suggested

drove

one

he

and

purchase

it

had

a

been

Washenko replied, “[T]hat car must have taken a lot

beating

Also

In the fall of 2011, Washenko was shopping for a

Moroccan

driver.”

she

was

[was]

he

late

a

insulting

2011,

deeply

Washenko

my

J.A.

246.

Guessous

offended

and

“couldn’t

own

engaged

in

mother.”
an

J.A.

extended

246.

prank,

telling staff members over the course of two weeks that Guessous
had tried to poison him.

In fact, Guessous had shared some Taco

Bell with Washenko at lunch one day, and that evening Washenko
had gone to the emergency room with abdominal pain.

Although he

was unable to get a diagnosis at the hospital, Washenko told
Guessous, and apparently others, that the doctor had asked him
who gave him the food, that Washenko had replied “my Muslim
employee,”
obviously

and

that

trying

to

the

doctor

poison

you

then
or

responded,
kill

you.”

“Well

she’s

J.A.

249.

Watching Washenko tell the story repeatedly around the office,
Guessous said she “just felt like a terrorist.”
9

J.A. 249-50.

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One of the most offensive episodes began differently than
most of the encounters described in Guessous’ testimony.
these

conversations

were

typically

initiated

by

While

Washenko,

in

this case Guessous decided to try to “educate” her boss about
her culture in order to frame it in a more positive light.

In

late 2011 or early 2012, Guessous was sent photos from a friend
who had moved to Dubai.

When she received the pictures of the

clean and modern city she wanted to show Washenko the images to
demonstrate “we’re not a bunch of like morons or idiots.”
247.

Rather

than

being

impressed

as

Guessous

had

J.A.
hoped,

Washenko told her that he had a friend who lived in Dubai for a
year and had hated the experience, and that this friend had told
him, “Despite all the buildings and modern [sic], they are just
a bunch of camel people.”

J.A. 247.

Most of Guessous’ remaining allegations concern what she
characterized
intrusive

in

and

subordinate

her

complaint

overbearing

employee.

and

approach

After

testimony
to

assuming

Washenko monitored Guessos directly.

as

managing
the

Washenko’s

her

position

as
of

his
CFO,

Guessous testified that

Washenko would often leave his office to stand behind her desk
and

inquire

what

she

was

working

on.

These

repeated as many as forty times in a single day.

inquiries

were

Guessous felt

that Washenko would sometimes badger her in this manner, wait
for her to become irritated or overwhelmed, and then accuse her
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overly

upset.

On

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at

least

one

occasion,

Washenko

followed Guessous into the copy room, asked her what she was
working on in there, and then told her, “I’m watching you.”
J.A. 215-16.

This conduct was specifically aimed at Guessous

and not at other employees.

In fact, other employees joked

about how, even when Washenko was out of the office, he would
constantly call Guessous to ask her what she was doing and to
tell her not to leave early.
Washenko once asked Guessous just five minutes after she’d
been given an assignment whether it was done.

When she said it

was not, Washenko looked at his watch, snapped his fingers, and
said, “[T]his is not Morrocan time.”

J.A. 238.

This close

supervision, combined with the troubling statements Washenko had
made about Muslims’, Arabs’, and Moroccans’ trustworthiness and
work ethic, made Guessous feel “like maybe I’m a crook.
made me rethink myself. . . .

Like he

So now I felt like he is not

seeing me as me and what I can bring to the table and my work.
Now he labeled me as this Middle Easterner.”

J.A. 212.

In the winter of late 2011 or early 2012, another incident
occurred which reinforced this link in Guessous’ mind.
called

Guessous

into

his

office

in

what

she

Washenko

described

as

secretive manner, asking her to close the door behind her.
proceeded
restaurant

to

tell

manager

Guessous
in

one

that
of

Rashid

Farivew’s
11

Lakroun,

a

buildings,

a
He

Moroccan
had

been

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Guessous was confused as to why she would be informed

since she was not involved with the restaurant and had only seen
Lakroun occasionally when he came into Fairview’s offices.

As

she expressed this confusion, Washenko told her, “I just thought
you should know since you are both Moroccan,” adding, “He’s a
very bad guy, Monica . . . .
guy.”

J.A. 250–51.

Monica, Monica, [h]e’s a very bad

This conversation left Guessous feeling

targeted, and she testified that “after I got fired, when I
left, I felt like I was [Lakroun].

Because now [Washenko]’s

probably calling somebody in his office telling them that I was
bad.”

J.A. 251.
B.

In late 2011, Guessous became pregnant.
2012,

Washenko’s

slowed.

comments

about

Arabs

and

During most of

Muslims

apparently

Guessous attributed this to her own conduct—she said

she avoided engaging with him in order to reduce stress during
her pregnancy.

In July 2012, Guessous requested a three month

maternity leave.

She stated in her complaint that Washenko felt

this was excessive and that she had to inform him that she was
legally entitled to twelve weeks off.
from August 2012 until October 2012.

Guessous was on leave

When she returned she said

Washenko largely ignored her, keeping all of her old work duties
assigned to other staff members whom Guessous described in her
complaint

as

“two

non-Muslim,
12

non-Arab,

Christian

American

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females, who also did not seek maternity leave.”

Guessous, 2014

WL 7238993, at *6.
On December 6, 2012, Guessous initiated a conversation with
Washenko in which she asked for her old duties back, to be
trained for additional duties if needed, and also confronted
Washenko about his past discriminatory and offensive conduct.
Guessous testified that she told Washenko that, as a new mom,
she

did

not

Approximately

want

the

stress

seventy-five

she

minutes

had

endured

after

that

in

the

past.

conversation

ended, Mary Alexander, Fairview’s president, sent two emails to
other employers not associated with Fairview.

The subject lines

of the emails read “Hiring?” and Alexander asked whether either
of these employers had any openings for “a wonderful girl that
works for me that we simply do not have enough work for right
now.”

J.A. 325-27.

Three months later, on March 1, 2013, Washenko terminated
Guessous.

Guessous was asked to sign a severance agreement that

would have waived her employment law rights, but she refused.
There

is

a

dispute

about

whether

Washenko

initially

cited

a

change in Fairview’s financial situation or a lack of work for
Guessous’ position.
alleges

that

the

Guessous, 2014 WL 7238993, at *7.
issue

of

insufficient

work

for

Fairview
Guessous’

position was discussed periodically over approximately two years
prior to her termination.

But Fairview avers that the decision
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to terminate Guessous was made by Washenko in “late November or
early December 2012 . . . and that [the] decision was approved
by Ms. Alexander.”

J.A. 339.

In other words, Fairview admits

the decision was made by Washenko at or around the time that
Guessous confronted him about withholding her job duties and
treating her poorly prior to her pregnancy.
Guessous’

position

was

not

filled

by

any

new

hire.

Instead, Fairview shifted her work duties to two staff members,
Kara Diaz and Tara Berger; an outside contractor, Kurt Johnson;
and to Washenko himself.
own

business

and

Johnson is an accountant who owns his

serves

multiple

clients.

He

testified,

however, that he is in the Fairview office three to four days
each week and that he spent even more time there in the past.
Ms. Diaz and Ms. Berger are both administrative assistants.
Guessous filed a discrimination charge with the EEOC on
March 5, 2013, just a few days after her termination.

She filed

her civil complaint approximately one year later on February 28,
2014.
II,

Guessous’ claims were divided into six counts.
and

III

asserted

race

discrimination,

Counts I,

hostile

environment, and retaliation respectively under § 1981.
IV,

V,

and

VI,

also

asserted

discrimination,

work
Counts

hostile

work

environment, and retaliation, but based on religion, national
origin, and pregnancy as covered under Title VII.

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On December 16, 2014, the district court granted Fairview’s
motion for summary judgment on all counts.

The court first

noted that Guessous “failed to comply with Local Rule 56(B) in
her Opposition to Defendant’s Motion for Summary Judgement” by
citing

to

her

own

complaint

and

by

failing

to

cite

certain

factual allegations at all rather than pointing to evidence in
the record to show a dispute of material fact.
WL

7238993,

Plaintiff’s

at

*10.

The

self-serving

court

statements

“refuse[d]
as

to

note

that

it

would

be

to

evidence

dispute of material fact” on these issues.
on

Guessous, 2014

proper

Id.
to

to

consider
create

a

The court went
“consider[]

the

defendant’s facts as undisputed for purposes of the motion” and
evaluate the motion as such.
“nevertheless
claims.”

proceed

to

Id.

However, the court decided to

assess

the

merits

of

Plaintiff’s

Id.

The district court held that Counts I, III, IV, and VI (the
discrimination

and

retaliation

claims

under

both

statutes)

failed because Fairview had met its burden to produce a nondiscriminatory reason (lack of work) for its underlying conduct
(terminating

Guessous),

and

Guessous

had

not

demonstrated

a

genuine issue of material fact to show that this reason was a
pretext.

As to Count II, the court concluded that only one of

Washenko’s statements “can be construed as a racially derogatory
comment,”

id.

at

*11,

and

held
15

this

was

insufficient

to

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establish a hostile work environment.

Finally, as to Count V,

the court found that the last act contributing to the alleged
hostile

work

environment

occurred

more

than

300

days

before

Guessous filed a complaint with the EEOC and that this claim was
therefore time-barred.

Id. at *18.

Guessous timely appealed.

II.
All issues in this appeal arise from an order of summary
judgment and are reviewed de novo.
558, 563 (4th Cir. 2009).

Pueschel v. Peters, 577 F.3d

Summary judgment is properly granted

where “the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a
matter of law.”

Fed. R. Civ. P. 56(a).

The burden is on the

nonmoving

to

a

party

show

that

material fact for trial.

there

is

genuine

issue

of

Liberty Lobby, 477 U.S. at 248-49.

The nonmoving party must do so by offering “sufficient proof in
the form of admissible evidence” rather than relying solely on
the

allegations

of

her

pleadings.

Mitchell

v.

Data

General

Corp., 12 F.3d 1310, 1316 (4th Cir. 1993).
The
favorable

court
to

must

the

“view

the

[nonmoving]

evidence

party.”

in

Tolan

the

light

v.

Cotton,

S. Ct. 1861, 1866 (2014) (internal quotation omitted).
court . . .

cannot

weigh

the

evidence
16

or

make

most
134
“The

credibility

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determinations.”

Pg: 17 of 46

Jacobs v. N.C. Admin. Office of the Courts,

780 F.3d 562, 568-69 (4th Cir. 2015).

In general, if “an issue

as to a material fact cannot be resolved without observation of
the

demeanor

of

witnesses

in

order

to

evaluate

credibility, summary judgment is not appropriate.”

their

Fed. R. Civ.

P. 56 advisory committee’s note to 1963 amendment.

III.
The district court granted summary judgment for Fairview on
the

discrimination

claims

(Counts

I

and

IV)

and

retaliation

claims (Counts III and VI) under both § 1981 and Title VII by
applying the McDonnell Douglas burden-shifting framework.

This

framework was initially developed for Title VII discrimination
cases, McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),
but has since been held to apply in discrimination cases arising
under § 1981, Patterson v. McLean Credit Union, 491 U.S. 164,
186 (1989); Murrell v. Ocean Mecca Motel, Inc., 262 F.3d 253,
257

(4th

Cir.

2001),

and

in

retaliation

cases

under

both

statutes, Beall v. Abbott Labs., 130 F.3d 614, 619 (4th Cir.
1997)

(addressing

Title

VII

retaliation

claim);

Hawkins

v.

PepsiCo, Inc., 203 F.3d 274, 281 n.1 (4th Cir. 2000) (addressing
§ 1981 retaliation claim).

The framework applies in employment

discrimination and retaliation cases where a plaintiff does not
present

sufficient

direct

or

circumstantial
17

evidence

showing

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that an adverse employment action was motivated by intentional
discrimination

aimed

characteristic(s).

at

steps:

McDonnell

plaintiff’s

protected

Foster v. Univ. of Md.-E. Shore, 787 F.3d

243, 250 (4th Cir. 2015).
The

the

This is such a case.

Douglas

framework

is

comprised

of

three

(1) the plaintiff must first establish a prima facie

case of employment discrimination or retaliation; (2) the burden
of production then shifts to the employer to articulate a nondiscriminatory or non-retaliatory reason for the adverse action;
(3) the burden then shifts back to the plaintiff to prove by a
preponderance of the evidence that the stated reason for the
adverse employment action is a pretext and that the true reason
is discriminatory or retaliatory.

Tex. Dep’t of Cmty. Affairs

v. Burdine, 450 U.S. 248, 252-56 (1981); see also Reeves v.
Sanderson
(holding

Plumbing
that

production,

the

not

Prods.,

Inc.,

employer’s

persuasion).

530

burden
For

U.S.
in

133,

step

status-based

two

142
is

(2000)
one

of

discrimination

claims, the employee must “show that the motive to discriminate
was one of the employer’s motives, even if the employer also had
other,

lawful

decision.”

motives

that

were

causative

in

the

employer’s

Univ. of Texas Sw. Med. Ctr. v. Nassar, 133 S. Ct.

2517, 2523 (2013).

Retaliation claims, by contrast, require the

employee to show “that retaliation was a but-for cause of a
challenged adverse employment action.”
18

Foster, 787 F.3d at 252;

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see Nassar, 133 S. Ct. at 2533 (“Title VII retaliation claims
must be proved according to traditional principles of but-for
causation, not the lessened causation test stated in § 2000e–
2(m).

This requires proof that the unlawful retaliation would

not have occurred in the absence of the alleged wrongful action
or actions of the employer.”).

The Supreme Court has recently

reiterated that a cause need not work in isolation to be a butfor cause.
(“Thus,

Burrage v. United States, 134 S. Ct. 881, 888 (2014)

if

poison

is

administered

to

a

man

debilitated

by

multiple diseases, it is a but-for cause of his death even if
those diseases played a part in his demise, so long as, without
the incremental effect of the poison, he would have lived.”).
As

the

district

court

pretext

“merges

with

persuading

the

discrimination.”

court

noted,
the
that

the

plaintiff’s
she

Guessous,

plaintiff’s

was

2014

WL

a

burden

ultimate

to

burden

show
of

victim

of

intentional

7238993,

at

*9

(citing

Burdine, 450 U.S. at 256).
A.
The

facts

and

reasoning

supporting

our

decision

on

Guessous’ retaliation claims are also essential for analyzing
her discrimination claims.
claims

first.

In

Count

As such, we address the retaliation
III,

Guessous

alleges

that

her

conversation with Washenko in December 2012 (in which she asked
for

her

old

duties

back

and

confronted
19

Washenko

about

past

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hostile

and

activity

Filed: 07/06/2016

discriminatory

under

§ 1981.

Pg: 20 of 46

conduct)

She

constituted

further

alleges

protected

that

Fairview

retaliated against her for engaging in that conduct by deciding
within seventy-five minutes to terminate her, as evidenced by
the emails sent by Alexander to two outside employers inquiring
whether they might hire her away from Fairview.

In Count VI,

Guessous makes essentially the same allegations but seeks relief
under Title VII.

Since the elements of these retaliation claims

are identical, Honor v. Booz–Allen & Hamilton, Inc., 383 F.3d
180, 188 (4th Cir. 2004), and because the district court granted
summary judgment on both for effectively the same reasons, we
review them together.
To establish a prima facie case of retaliation under either
statute, Guessous must show “(i) that [she] engaged in protected
activity, (ii) that [her employer] took adverse action against
[her], and (iii) that a causal relationship existed between the
protected

activity

and

the

adverse

employment

activity.”

Foster, 787 F.3d at 250 (alteration in original) (quoting Price
v. Thompson, 380 F.3d 209, 212 (4th Cir. 2004)) (quotation marks
omitted).

The

Under

the

facie

case

district

McDonnell
shifted

court

Douglas
the

held

these

framework,

burden

to

elements

were

met.

establishing

a

prima

Fairview

to

produce

a

legitimate, non-discriminatory reason for the adverse employment
action.

Fairview alleged that Guessous was terminated because
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there was insufficient work to support her position.

The burden

then shifted back to Guessous to show this reason was a pretext
to disguise the true retaliatory reason for her termination.
The sole issue on appeal, therefore, is whether Guessous
met

her

summary

judgment

burden

of

demonstrating

a

genuine

dispute of material fact on the question of pretext sufficient
to

make

Fairview’s

proffered

justification

a

triable

issue.

Foster, 787 F.3d at 254; see also King v. Rumsfeld, 328 F.3d
145, 154 (4th Cir. 2003) (Gregory, J., dissenting) (“To survive
summary

judgment,

employer’s
doubt

upon

however,

explanation.
the

King

need

Instead,

genuineness

of

the

not

King

squarely

must

cast

explanation

to

rebut

his

sufficient
warrant

a

jury’s consideration of possible alternative and discriminatory
motivations for the firing.”).
Rather

than

engaging

in

a

detailed

analysis

of

the

competing evidence proffered by Fairview to support its lack-ofwork theory, and by Guessous to support her retaliation theory,
the district court granted summary judgment for Fairview for one
reason:

that Guessous’ position remained unfilled.

2014 WL 7238993, at *15.

Guessous,

The court offered no elaboration in

its opinion, but its logic appears to have been that, because
the work was absorbed by Fairview’s other employees, Guessous
cannot show that there was enough work to justify keeping her on
staff and she therefore cannot prevail.
21

If that is, indeed, the

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court’s reasoning it is a fallacy:

because Fairview has shown

it could operate without Guessous does not mean that it would
have done so absent the protected activity.

Guessous’ burden is

only to show that the protected activity was a but-for cause of
her termination, not that it was the sole cause.

Foster, 787

F.3d at 252; see also Montell v. Diversified Clinical Servs.,
Inc.,

757

F.3d

497,

507

(6th

Cir.

2014)

(“[I]n

retaliation

cases, courts must determine ‘what made [the employer] fire [the
employee] when it did.’” (emphasis and alteration in original)
(quoting Hamilton v. Gen. Elec. Co., 556 F.3d 428, 436 (6th Cir.
2009))).
The

district

court

and

Fairview

are

both

correct

that

Guessous failed to show there was so much work to be done that
the bookkeeping assistant’s position was an absolute necessity.
The position was not back filled and Guessous acknowledged in
her testimony that she was not always busy.

A reasonable jury

could easily conclude, however, that the termination decision
was made only seventy-five minutes after Guessous’ complained to
Washenko

about

past

comments

and

treatment,

therefore motivated by the complaint itself.

and

that

it

was

See Okoli v. City

of Baltimore, 648 F.3d 216, 223 (4th Cir. 2011) (holding that
the

“deeply

hours

after

suspicious
she . . .

[fact]

that

complain[ed]

22

Stewart
to

fired
the

Okoli

Mayor”

only
about

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harassment was sufficient to meet plaintiff’s burden to show
pretext at the summary judgment stage).
The December 6, 2012, emails from Alexander are substantial
evidence

in

support

of

Guessous’

argument

that

when

she

complained to her supervisor, who was also her alleged harasser,
Washenko

decided

to

decision

approved

terminate

by

her

and

Alexander.

immediately

Fairview

got

counters

Alexander did not know about the confrontation.

the
that

This argument

has two problems.

First, Guessous has presented evidence that a

co-worker

the

brought

confrontation

to

Alexander’s

attention

while it was ongoing because Washenko had made Guessous cry.
This

alone

conclude

would

be

Alexander

enough

knew

to

about

allow
the

a

reasonable

complaint

termination decision was made in response.

and

jury
that

to
the

Second, Fairview has

admitted that the decision to fire Guessous was made by Washenko
in “late November or early December 2012 . . . and that [the]
decision

was

admission

is

termination
Alexander

approved

consistent

decision
was

by

Ms.

Alexander.”

with

was

made

involved,

and

Guessous’
on

December

that

the

J.A.
claim
6,

339.
that

This
the

2012,

that

termination

was

retaliatory.
The absence of any evidence to support Fairview’s lack-ofwork explanation is also important.

Although Fairview claims

that Washenko and Alexander had discussed eliminating Guessous’
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position in the past, there is no record evidence to support
that

claim—no

emails,

reviews, nothing.

no

meeting

minutes,

no

performance

The only thing Fairview even points to as

evidence is the pair of December 6, 2012, emails from Alexander.
Fairview

points

out

that

enough work for Guessous.

they

explicitly

say

there

was

not

But the fact that these emails came

on the heels of the protected activity in this case suggest that
the reason given in the emails was a pretextual one.
jury

accepted

assistant

Fairview’s

bookkeeper,

argument

based

on

that

the

it

record

did

Even if a

not

evidence

need
it

an

could

still conclude that the protected activity was the final straw
that motivated Guessous’ termination.
at

888.

Because

Guessous’

See Burrage, 134 S. Ct.

evidence

puts

the

validity

of

Fairview’s explanation in doubt, it is sufficient to survive
summary judgment.

See Hux v. City of Newport News, 451 F.3d

311, 315 (4th Cir. 2006) (holding a plaintiff will not survive
summary judgment by “focusing on minor discrepancies that do not
cast doubt on the explanation’s validity”); King, 328 F.3d at
154 (Gregory, J., dissenting) (“Because he has made out a prima
facie

case,

motivations

if

King

behind

also

his

has

unique

cast

doubt

treatment,

upon
he

the

has

real

adduced

sufficient evidence to survive summary judgment.”).
We

therefore

reverse

the

district

court

and

vacate

order of summary judgment with respect to Counts III and VI.
24

the

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B.
In Count I of her complaint, Guessous alleges that Fairview
treated

her

differently

based

on

her

race,

ultimately

terminating her and giving her work duties to several non-Arab
employees in violation of § 1981.

In Count IV, she makes the

same

asserts

allegations

conduct

was

except

based

on

that
her

she

religion,

pregnancy as covered under Title VII.

the

national

discriminatory
origin,

and

As the elements of these

discrimination claims are effectively the same and the district
court granted summary judgment on both for effectively the same
reasons, we review them together.
In a typical discriminatory discharge case, the plaintiff
establishes a prima facie case by showing “(1) that [s]he is a
member of a protected class; (2) that [s]he suffered from an
adverse employment action; (3) that . . . [s]he was performing
at a level that met [her] employer’s legitimate expectations;
and (4) that the position was filled by a similarly qualified
applicant outside the protected class.”

King, 328 F.3d at 149.

As we have explained, however, the prima facie requirements are
not

set

in

stone,

require adaptation.”
(4th Cir. 1991).
required

here,

and

“differing

factual

circumstances

may

Duke v. Uniroyal Inc., 928 F.2d 1413, 1417
An adaptation of the prima facie case is

because

this

is

not

a

typical

discriminatory

discharge case, where a putatively poor-performing employee is
25

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terminated and replaced by someone outside the protected class.
Because Fairview claims it terminated Guessous because it lacked
enough work for a full-time bookkeeping position, this case is
closer to a reduction-in-force case, where unnecessary positions
are

eliminated,

than

it

is

to

a

typical

discharge

case.

Accordingly, adapting the final prima facie requirement to the
facts of this case means that Guessous was required to show that
her job duties were absorbed by employees not in the protected
class or otherwise show that Fairview did not treat Guessous’
protected characteristics neutrally when deciding to terminate
her.

See id.; Merillat v. Metal Spinners, Inc., 470 F.3d 685,

690 n.1 (7th Cir. 2006) (explaining that in a “mini-RIF” case,
which

involves

the

elimination

of

only

one

position,

“[t]he

retention of an employee outside the protected class to perform
the plaintiff’s duties is nothing more than a demonstration of
more favorable treatment, particularly tailored to the factual
circumstances

of

a

mini-RIF

case.”).

Given

the

undisputed

evidence that Guessous’ duties were absorbed by non-Arab, nonMuslim employees, Guessous has established a prima facie case of
discriminatory
Guessous
genuine

met

discharge.
her

dispute

summary

of

The

question,

judgment

material

fact

burden
on

the

then,
of

is

whether

demonstrating

question

of

a

pretext

sufficient to make Fairview’s proffered justification a triable
issue.

Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d
26

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310, 319 (4th Cir. 2005).

Pg: 27 of 46

The district court recognized that

Guessous offered three arguments, supported by the record, to
rebut

the

decision

proffered

to

justification

terminate

her

was

as

pretextual:

finalized

“(1)

seventy-five

the

minutes

after she engaged in protected activity, (2) no one else was
terminated for the reasons provided by Defendant, and (3) she
was terminated by her aggressor.”
*11.

Guessous, 2014 WL 7238993, at

But the court concluded that “[n]one of these . . . could

lead a reasonable jury to conclude by a preponderance of the
evidence that . . . lack of work [] was not its true reason” for
terminating Guessous.

Id.

The court did not offer further

reasoning in support of this legal conclusion.
As with the retaliation claims, the court observed that
Guessous’ position was not filled after her termination.

Id.

As noted above, however, this is not a typical discharge case,
so the fact that Guessous was not replaced by a new hire does
not prevent Guessous from establishing pretext and thus is not
fatal to her claim.

Whether or how this played into the court’s

analysis, however, is unclear because replacement by a person
outside

the

protected

discrimination claim.

class

is

a

prima

facie

King, 328 F.3d at 149.

element

of

a

The district

court explicitly found that Guessous had established a prima
facie case, so to the extent it relied on the fact that the
position

was

never

filled

to

conclude
27

she

had

not

met

her

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burden,

the

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court’s

inconsistent.

Pg: 28 of 46

opinion

appears

to

be

internally

Nor is there anything in the McDonnell Douglas

burden-shifting

framework

that

says

“a

plaintiff

must

always

introduce additional, independent evidence of discrimination.”
Reeves,

530

U.S.

at

149.

To

the

extent

that

the

evidence

supporting a plaintiff’s prima facie case also undermines the
employer’s non-retaliatory justification, that evidence may be
called upon by the trier of fact in determining whether or not
the proffered justification is pretextual.

Id. at 143.

It is

therefore not clear why the court felt Guessous’s evidence of
discriminatory

purpose

was

outweighed

by

Fairview’s

evidence

that it had not hired a replacement.
For largely the same reasons discussed in connection with
Guessous’
sufficient

retaliation
to

permit

claims,
a

the

evidence

reasonable

jury

in

the

record

to

conclude

is

that

Fairview’s lack-of-work claim is a pretext for discrimination.
Fairview contends that it had been considering the elimination
of Guessous’ position for two to three years before she was
terminated, but there is no evidence in the record documenting
the

existence

Guessous’

of

position.

a

years-long
While

evaluation

Fairview

of

contends

the
the

need

for

“wonderful

girl” emails sent by Alexander on December 6, 2012, confirm the
lack of work, a jury would be entitled to take those emails at
less than face-value, given that they were sent so soon on the
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of

treatment

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Guessous’
of

her,

Pg: 29 of 46

conversation

a

with

Washenko

conversation

about

which

contemporaneous knowledge.

about

Alexander

his
had

Moreover, the record evidence shows

that other employees—including those to whom Guessous’ work was
redistributed—were not busy and yet kept their jobs.

J.A. 260-

61 (“Kara . . . said to me, ‘Oh, my god, Monica, I have nothing
to do today.’ . . .
I’m

just

pinning

And [Kara’s] like, ‘I’m browsing Pinterest,
this,

pinning

this,

pinning

that.’

And

[Washenko] even confirmed it that Kara had nothing to do.”).
More to the point, all of the evidence of Washenko’s disparaging
remarks and statements that Muslims and Middle Easterners were
“crooks”

and

untrustworthy

support

the

allegation

that

the

termination was a continuation of past discrimination, brought
to a head by Guessous’ complaint about that very discriminatory
conduct.

The

record

establishes

a

history

of

discomfort,

distrust, and disparaging treatment directed at Guessous, and it
demonstrates a discriminatory animus on the part of Washenko.
At

oral

distinguish
inappropriate

argument,
between
comments

counsel

what
and

it

for

Fairview

admitted

Guessous’

termination was motivated by animus.

attempted

were

allegation

to

Washenko’s
that

the

Oral Argument 25:00.

But

Guessous’ burden is only to “produce sufficient evidence upon
which one could find that ‘the protected trait . . . actually
motivated the employer’s decision.’”
29

Hill v. Lockheed Martin

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Logistics

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Mgmt.,

Inc.,

354

Pg: 30 of 46

F.3d

277,

(quoting Reeves, 530 U.S. at 141).

286

(4th

Cir.

2004)

That counsel believes the

statements were inappropriate but not indicative of animus is of
no moment—a reasonable jury would certainly be entitled to reach
a different conclusion.

As this is the extent of Guessous’

burden at the summary judgment stage, we reverse the district
court and vacate the order of summary judgment with respect to
Counts I and IV.

IV.
In

Count

II,

Guessous

alleges

she

was

subjected

to

a

hostile work environment based on her race and seeks to recover
under § 1981.

In Count V she makes the same allegation with

respect to her religion, national origin, and pregnancy, seeking
recovery

under

Title

VII.

The

elements

of

a

hostile

work

environment claim “are the same under either § 1981 or Title
VII.”

Spriggs v. Diamond Auto Glass, 242 F.3d 179, 184 (4th

Cir. 2001).

To prevail on a hostile work environment claim, “a

plaintiff must show that there is ‘(1) unwelcome conduct; (2)
that is based on the plaintiff’s [protected characteristic]; (3)
which

is

sufficiently

severe

or

pervasive

to

alter

the

plaintiff’s conditions of employment and to create an abusive
work environment; and (4) which is imputable to the employer.’”

30

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Doc: 57

648

Filed: 07/06/2016

F.3d

at

220

Pg: 31 of 46

(quoting

Mosby-Grant

v.

City

of

Hagerstown, 630 F.3d 326, 334 (4th Cir. 2010)).
A.
Because Count V squarely presents a statute of limitations
issue

also

implicating

Count

II,

we

address

it

first.

The

district court granted Fairview’s motion for summary judgment on
Count

V,

finding

that

Guessous’

environment claim was time barred.

Title

VII

hostile

work

To pursue a claim under

Title VII, a Title VII Charge must be filed with the EEOC within
a statutorily defined period of time of either 180 or 300 days.
42 U.S.C. § 2000e-5(e)(1); see also Holland v. Washington Homes,
Inc., 487 F.3d 208, 219 (4th Cir. 2007).

The district court

found, and the parties agree, that the statutory period for this
case is 300 days.
“A hostile work environment claim is composed of a series
of

separate

acts

that

collectively

constitute

one

‘unlawful

employment practice,’” and the Supreme Court has held that such
claims are subject to a “continuing violation” theory 5:

5

“In

To be precise, the Supreme Court rejected the “continuing
violation” doctrine then followed in the Ninth Circuit, which
held a defendant could be liable for discrete discriminatory
acts that were otherwise time barred if those acts were related
to subsequent violations falling within the statutory period.
Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002).
However, it adopted such a doctrine with respect to hostile work
environment claims, and this and other courts have referred to
this doctrine as a “continuing violation” approach.
E.g.,
(Continued)
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determining whether an actionable hostile work environment claim
exists, we look to ‘all the circumstances,’” and “[p]rovided
that an act contributing to the claim occurs within the filing
period, the entire time period of the hostile environment may be
considered

by

liability.”

a

court

for

the

purposes

of

determining

Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101,

116-17 (2002) (emphasis added).

In other words, even if most of

the harassing conduct on which a plaintiff relies to establish
her

hostile

statutory
least

work

period,

one

act

environment
the

claim

continuing

statutory period.

claim

will

the

be

occurred
considered

violation

outside
timely

occurred

if

within

the
at
the

Furthermore, the plaintiff may recover for

all of the harm resulting from the hostile work environment, not
just those contributing acts that occurred during the statutory
period.

Id. at 119 (“If Congress intended to limit liability to

conduct occurring in the period within which the party must file
the charge, it seems unlikely that Congress would have allowed
recovery for two years of backpay.”).

Gilliam v. S.C. Dep’t Of Juvenile Justice, 474 F.3d 134, 140
(4th Cir. 2007) (“The Supreme Court, however, in its Morgan
decision in 2002, explained the standards for applying the
continuing violation doctrine-undermining our earlier authority
on this point-and instructed that evidence of behavior occurring
outside of the applicable limitations period can be used to
support a plaintiff’s hostile work environment claim.”).
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The

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discriminatory

and

Pg: 33 of 46

retaliatory

termination

claims

(Counts IV and VI) survived the limitations inquiry because each
of those counts was predicated on the termination itself, which
occurred on March 1, 2013, just days before Guessous filed her
charge with the EEOC.

Guessous argued to the district court

that the termination was also a constituent act contributing to
the hostile work environment and that Count V was therefore also
timely.

Alternatively, Guessous argued that Washenko’s decision

to remove her assignments from her in November 2012 after she
returned from maternity leave was a constituent act supporting
the hostile work environment claim and also occurred within the
statutory period.
The district court held that “[d]iscrete acts includ[ing],
inter alia, termination, failure to promote, denial of transfer
and refusal to hire,” as well as removing work assignments, are
“different from the hostile work environment claims” and that,
because
cannot

such

discrete

comprise

part

acts
of

a

are

hostile

Guessous, 2014 WL 7238993, at *17.
In

Morgan,

the

Supreme

separately
work

actionable,
environment

they
claim.

That holding was in error.

Court

held

that

a

time-barred

discrete act claim remains time-barred even if it is part of a
series of related actions, some of which occurred during the
limitations period.
acts

are

not

See id. at 113 (“[D]iscrete discriminatory

actionable

if

time
33

barred,

even

when

they

are

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related to acts alleged in timely filed charges.”).
establishes

that

the

continuing-violation

Morgan thus

doctrine

cannot

be

used to pursue claims challenging time-barred discrete acts.
That, however, is not the issue in this case, as Guessous
does not rely on the continuing-violation doctrine to revive
time-barred discrete acts.
discrete

acts

here—the

Indeed, there are no time-barred

discrete

acts

about

which

Guessous

complains occurred only a few months before she filed her EEOC
charge.

Instead, the issue in this case is whether non-time-

barred discrete acts can be considered part of the “series of
separate

acts

that

collectively”

create

a

hostile

work

environment, id. at 117, thus rendering a hostile-environment
claim timely under the continuing-violation doctrine.
The

Supreme

Court

has

recently

explained

that

in

a

constructive-discharge case, the employee’s resignation is the
culmination

of

the

intolerable

discriminatory

conduct

of

the

employer, such that the relevant limitation period starts with
the employee’s resignation, not the last act of the employer.
See Green v. Brennan, 2016 WL 2945236 at *6 (U.S. May 23, 2016).
If

a

constructive

discriminatory

discharge

pattern

discrete act cannot.

of

can

conduct,

be
we

part
see

and
no

parcel
reason

of

a

that

a

So long as the act is part of the pattern

of discriminatory treatment against the employee, then that act
should be sufficient for purposes of the continuing-violation
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doctrine, even if the act would otherwise qualify as a discrete
act that is independently actionable.
In Green, the Supreme Court also clarified the holding in
Morgan to be that a hostile-environment claim “includes every
act composing that claim, whether those acts are independently
actionable or not.”

2016 WL 2945236 at *6 (emphasis added).

It

pointed out that “even if a claim of discrimination based on a
single discriminatory act is time barred, that same act could
still

be

used

as

part

of

the

basis

for

a

hostile-work-

environment claim, so long as one other act that was part of
that

same

hostile-work-environment

claim

occurred

within

the

limitations period.”

Id. at *9 n.7 (emphasis added) (citing

Morgan,

117).

536

U.S.

at

As

such,

the

district

court’s

conclusion that neither the withdrawal of work from Guessous nor
her

termination

were

facts

that

could

support

hostile work environment claim was erroneous.

her

Title

VII

Because the work

assignments were withdrawn in November 2012, and the termination
occurred
statutory

in

March

period

2013,
which

both

constitute

contributed

to

facts
the

within

hostile

the
work

environment and make that claim timely.
B.
With
summary

respect
judgment

to
for

Count

II,

Fairview,

the

district

holding

that

court
only

granted
one

of

Washenko’s comments was racially derogatory, that this was the
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only unwelcome conduct alleged to be based on Guessous’ race,
and that this was insufficiently severe or pervasive conduct to
support a hostile work environment claim under § 1981.
Hostile work environment claims under § 1981 are subject to
a four year limitation period.

White v. BFI Waste Servs., LLC,

375 F.3d 288, 291-92 (4th Cir. 2004).
her

complaint

in

the

district

Because Guessous filed

court

on

February

28,

2014,

“unwelcome conduct” occurring on or after February 28, 2010,
falls

within

the

statutory

period.

As

already

discussed,

however, hostile work environment claims under Title VII are
also

subject

to

the

“continuing

violation”

theory

for

establishing limitations periods which can make the defendant
liable for conduct occurring prior to the statutory period as
well.

As

February

there

28,

2010,

was

relevant

this

conduct

Court

must

that

decide

occurred
whether

before

the

same

continuing violation theory applies in § 1981 cases.
Four of our sister circuit courts of appeal have addressed
this issue, and all four have held that the Morgan continuing
violation approach applies to § 1981 hostile work environment
claims just as it does to such claims under Title VII.

Tademy

v. Union Pac. Corp., 614 F.3d 1132, 1153-54 (10th Cir. 2008);
Dandy v. United Parcel Serv., Inc., 388 F.3d 263, 270 (7th Cir.
2004);

Madison

v.

IBP,

Inc.,

330

F.3d

1051,

1061

(8th

Cir.

2003); Shields v. Fort James Corp., 305 F.3d 1280, 1282 (11th
36

Appeal: 15-1055

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Cir. 2002).
work

Filed: 07/06/2016

In Morgan, the Supreme Court characterized hostile

environment

employment

Pg: 37 of 46

claims

practice,”

as

addressing

rendering

the

“a

single

constituent

that practice effectively indivisible.

unlawful

acts

forming

536 U.S. at 115, 117.

Our sister circuits have viewed this as a simplification of the
law, e.g., Shields, 305 F.3d at 1282, allowing the courts to
view a hostile work environment claim holistically in the same
way that discrete act claims are normally treated.
consistent

with

the

Supreme

Court’s

analysis

This is
explicitly

contrasting the simple task of identifying a discrete act “such
as termination, failure to promote,” etc., with the murkier task
of pinning down hostile work environment claims that by “[t]heir
very nature involve[] repeated conduct.”
114-15.

Morgan, 536 U.S. at

That problem is as present in § 1981 claims as it is in

Title VII claims, and the Morgan Court’s solution is therefore
equally applicable.
to

§ 1981

claims

Applying the continuing violation approach
would

also

extend

this

Court’s

policy

of

treating Title VII and § 1981 hostile work environment claims
the same.

Spriggs, 242 F.3d at 184.

As such, we hold that

Morgan applies with equal force when such claims arise under
§ 1981.
We now turn to the merits of the race-based hostile work
environment claim.

We first note that application of Morgan to

the facts of this case results in all of the alleged conduct
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being relevant to our inquiry.

Pg: 38 of 46

The district court held that the

first element for a successful claim was met as the alleged
conduct was, indeed, unwelcome.

It granted summary judgment for

Fairview,

combination

however,

based

on

a

of

the

second

and

third elements of the claim—that the conduct be based on the
plaintiff’s race and be severe or pervasive.

First, the court

held

people

that

Washenko’s

statement

calling

the

of

Dubai

“camel people” was the only one that could be characterized as
racially

derogatory.

Second,

it

determined

that

this

one

comment was insufficient to cause a reasonable person to believe
“the environment [was] objectively hostile or abusive.”

EEOC v.

Sunbelt Rentals, Inc., 521 F.3d 306, 318 (4th Cir. 2008).
Two aspects of the district court’s decision were in error:
with respect to the second step of the analysis, the district
court took an overly cramped view of what constitutes race-based
conduct; with respect to the third step, the court failed to
consider

the

totality

of

circumstances,

as

it

must

when

determining whether unwelcome conduct is severe or pervasive.
Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 277 (4th
Cir. 2015).
Turning first to the district court’s approach to race, the
Supreme Court has held that “Congress intended to protect from
discrimination identifiable classes of persons who are subjected
to intentional discrimination solely because of their ancestry
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or ethnic characteristics.”
481 U.S. 604, 613 (1987).

Pg: 39 of 46

Saint Francis Coll. v. Al-Khazraji,
Where the conduct at issue is “based

on the fact that [the plaintiff] was born an Arab, rather than
solely on the place or nation of his origin, or his religion, he
will

have

made

out

a

case

under

§ 1981.”

Id.

Based

on

legislative history, the Court further noted that many of the
“races” which members of Congress perceived to be covered by
§ 1981

comprised

identifiable

ancestrally

by

their

related

physiognomic characteristics. 6

more

easily

affinities

cultural

peoples

than

their

Id. at 612 (noting references to

“Scandinavian races,” “the Chinese,” “Latin,” “Spanish,” AngloSaxon

races,”

“Jews,”

“Mexicans,”

“Gypsies,” and “the German race”).
far as to say “that

“blacks,”

“Mongolians,”

In fact, the Court went so

a distinctive physiognomy is not essential

to qualify for § 1981 protection.”

Id. at 613.

Guessous’ assertion is that her Arab ethnicity 7 motivated
Washenko’s

conduct,

or

at

least

enough

of

his

conduct

to

6

In fact, the word “race” does not appear in § 1981 at all,
although the statute has long been construed as barring racial
discrimination in public and private contracts.
Runyon v.
McCrary, 427 U.S. 160, 168-69 (1976).
7

Although “Arab” is usually considered a cultural rather
than racial designation, the Supreme Court has specifically held
that it is a cognizable protected class under § 1981.
Saint
Francis Coll., 481 U.S. at 613; see also id. at 610 n.4
(discussing Arab peoples as members of the Caucasoid race, as
(Continued)
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constitute intolerable working conditions.

Viewed through the

lens just established, it is not at all clear how the district
court concluded that “camel people” was racially derogatory, but
all 8 “of Washenko’s [other] statements toward [Guessous], while
distasteful, were references to and questions about Islam and
Moroccan culture” and not her Arab ethnicity.
7238993,

at

*13.

To

begin,

the

Guessous, 2014 WL

comments

were

more

than

distasteful, and it is beyond euphemistic to characterize them
as references and inquiries.

More to the point, many of these

comments were either clearly or conceivably racial.
During their very first interaction, Washenko told Guessous
that “Middle Easterners . . . are a bunch of crooks, [who] will
stop at nothing to screw you.”

J.A. 207-08.

A broad comment

like this one, aimed at no particular religion or nationality,
could

certainly

be

construed

as

racially

motivated.

That

comment also set the stage for Guessous’ and Washenko’s working
relationship from that point forward.

In late 2011, Washenko

assumed that Guessous, an Arab from Morocco, would be able to

well as the limitations of a purely scientific approach to such
determinations).
8

The district court used the word “most” rather than “all”
as we use here. We make this substitution based on the district
court’s holding that only one of Washenko’s many statements was
racially hostile. By implication, the court must have concluded
that none of the rest of his comments was racial in nature.
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interpret for a Persian Iranian restaurant employee who did not
speak English.

When Guessous told him the employee spoke Farsi

and she did not, Washenko said “shouldn’t there be some sort of
secret language you all understand?”

J.A. 246.

A jury could

easily conclude that “you all” referred to a racial category,
that

it

was

a

reference

to

Middle

Eastern

people,

and

that

Washenko perceived Arabs and Persians to be members of the same
race (or was entirely unaware of any distinction at all).

Even

his comment that Muslims and Christians do not worship “the same
God,”

while

clearly

motivated

in

large

part

by

a

religious

animus, could be construed as taking on racial overtones when
Washenko followed up by saying, “We are not the same.”
225-26.

J.A.

The manner in which Washenko delivered this statement

left Guessous feeling less than human, a hallmark of racially
insensitive conduct.
The district court put itself in the place of the jury when
it decided that only one of the remarks was racial.

The court

said the remaining comments “were references to and questions
about Islam and Moroccan culture,” but a jury might well decide
they were also motivated by broader ethnic animus.
Francis

Coll.,

481

U.S.

at

613

(holding

that

See Saint

discrimination

“based on the fact that [plaintiff] was born an Arab, rather
than solely on the place or nation of his origin” will support a
§ 1981 claim (emphasis added)).
41

After all, Washenko regularly

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interchanged his harassment of Guessous, referring to Muslims,
Morrocans, Palestinians, Egyptians, Middle Easterners, and North
Africans.

A jury could reasonably conclude that Washenko bore

animus towards all Middle Eastern people (other than Israelis
whom

Washenko

attacks);

referred

that

Guessous

to

as

the

reasonably

victims

of

perceived

Palestinian

many

of

these

comments as racial insofar as Washenko considered most Middle
Easterners

and

“terrorists”;

Middle

and

Eastern

therefore

Muslims

that

to

Washenko

be

“crooks”

harassed

or

Guessous

based on her Arab ethnicity even when his comments referred to
other,

related

aspects

of

her

identity.

In

reaching

this

conclusion, we do not endorse Guessous’ argument that a § 1981
claim may be pursued on the theory that all aspects of her
identity form “an amorphous whole,” making Fairview liable under
that statute for non-race-based harassment. 9

We hold only that

it would be possible for a jury to interpret many of Washenko’s
comments as based on race in addition to other forms of animus.

9

Such a theory may be available under Title VII to the
extent that it covers multiple elements of identity, including
religion and national origin, not covered by § 1981. This Court
has not decided whether such “hybrid” claims may be maintained,
and has no occasion to do so here, but several of our sister
circuits have agreed that, under Title VII, “where two bases for
discrimination exist, they cannot be neatly reduced to distinct
components.”
Lam v. Univ. of Hawai’i, 40 F.3d 1551, 1562 (9th
Cir. 1994).
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Finally, on the question of whether the conduct was severe
or pervasive, the district court erred by failing to take into
account the totality of the circumstances as we have held it
must do at this stage of the analysis.
184.

Spriggs, 242 F.3d at

The “severe or pervasive” question is subject to the same

standard under § 1981 that applies to Title VII.
workplace

is

permeated

with

discriminatory

“When the

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, Title VII [and therefore § 1981] is
violated.”
(1993)

(internal

“[S]imple
(unless

Harris

v.

Forklift

citations

teasing,

extremely

and

offhand
serious)

Sys.,

quotation

comments,
will

Inc.,

not

and
amount

510

U.S.

17,

21

marks

omitted).

isolated

incidents

to

discriminatory

changes in the terms and conditions of employment.”

Faragher v.

City of Boca Raton, 524 U.S. 775, 788 (1998) (internal citations
and quotation marks omitted).
Because
derogatory

its

analysis

comment

was

of

flawed,

what
as

constitutes

just

discussed,

a

racially
much

more

conduct should have been reviewed by the court in addressing
this

question.

conduct

As

sufficiently

the

district

severe

or

court

noted,

pervasive

we

where

have
an

found

Iranian

employee was called “the local terrorist, a camel jockey, and
the Emir of Waldorf” repeatedly throughout the duration of his
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employment.

Pg: 44 of 46

Amirmokri v. Baltimore Gas & Elec. Co., 60 F.3d

1126, 1131 (4th Cir. 1995) (quotation marks omitted).
district

court

attempted

to

distinguish

Amirmokri

But the
from

this

case, noting that there the plaintiff developed an ulcer and
resigned.
course,

Guessous, 2014 WL 7238993, at *12.
no

symptoms,

requirement

nor

that

she

that

the

plaintiff

leave

her

job,

severe or pervasive harassment.
22.

develop
prove

physical

sufficiently

See Forklift, 510 U.S. at 21–

The question is whether Guessous reasonably perceived “the

work environment to be abusive.”
The

to

There is, of

conduct

overlooked

by

the

Amirmokri, 60 F.3d at 1131.
district

court

demonstrated

a

greater “frequency of the discriminatory conduct,” some of the
episodes were more “sever[e]” than the single “camel people”
comment,

and

there

was

substantial

testimony

that

the

discrimination “unreasonably interfere[d] with [Guessous’] work
performance.”

Forklift,

510

U.S.

at

23.

There

was

also

evidence—in the form of Guessous’ email to her brother-in-law
and testimony that she often left the office to cry and that she
was concerned about how the stress from her work environment
might affect her pregnancy—that Guessous’ “psychological wellbeing”

was

at

risk,

which

“is,

of

course,

relevant

to

determining whether the plaintiff actually found the environment
abusive.”

Id.

44

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Moreover,

Filed: 07/06/2016

the

court

did

Pg: 45 of 46

not

look

at

the

evidence

of

Washenko’s intimidating and intrusive management of Guessous or
that behavior’s relationship to his race-based statement that
“Middle Easterners . . . are a bunch of crooks.”
Guessous

testified

that

she

felt

demeaned

J.A. 207-08.
by

Washenko’s

intrusive management of her (and her alone), the intimidating
way

he

would

stand

over

her

during

confrontational

conversations, and the underlying assumption that she was not to
be trusted.

The evidence suggests Washenko thought Guessous was

untrustworthy—and intended to make that clear to her—from the
moment

she

meeting.

disclosed
A

conclusion.

jury
We

her

would

have

origins

certainly

long

held

to

him

at

their

initial

be

entitled

to

reach

that

“whether

harassment

that
was

sufficiently severe or pervasive is quintessentially a question
of fact,” Walker v. Mod-U-Kraf Homes, LLC, 775 F.3d 202, 208
(4th Cir. 2014) (citations and quotation marks omitted), and
here

Guessous

has

presented

diverse

evidence

sufficient

to

create a material dispute as to the severity of the unwelcome
conduct.
By failing to address numerous comments that were open to a
racially

motivated

interpretation,

and

by

circumscribing

its

analysis to just one comment without reviewing the totality of
the circumstances, the district court committed reversible error

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Pg: 46 of 46

in its grant of summary judgment for Fairview.

As to Count II

we reverse.

V.
Based

on

the

foregoing,

we

vacate

the

order

of

summary

judgment on all claims and remand for further proceedings.

VACATED AND REMANDED

46