Hasan, Zafar v. Foley & Lardner LLP ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 07-3025
Z AFAR H ASAN,
Plaintiff-Appellant,
v.
F OLEY & L ARDNER LLP,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 04 C 5690—James B. Zagel, Judge.
A RGUED S EPTEMBER 10, 2008—D ECIDED D ECEMBER 15, 2008
Before C OFFEY, R IPPLE and M ANION, Circuit Judges.
R IPPLE, Circuit Judge. Zafar Hasan, a Muslim of Indian
descent and a former associate at the law firm Foley &
Lardner LLP (“Foley”), brought this action claiming that
Foley had terminated his employment after the terrorist
attacks of September 11, 2001, because of his religion, race,
national origin and color. The district court granted Foley’s
2 No. 07-3025
motion for summary judgment. Mr. Hasan now appeals.
For the reasons set forth in this opinion, we reverse the
judgment of the district court and remand the case for
further proceedings.
I
BACKGROUND
A.
In reviewing the district court’s grant of summary
judgment, we must construe the facts in the light most
favorable to Mr. Hasan. See Darst v. Interstate Brands Corp.,
512 F.3d 903, 907 (7th Cir. 2008).
Foley invited Mr. Hasan to join the Business Law Depart-
ment in its Chicago office in October 2000. R.75 at 1-2. At
first, Foley was pleased with Mr. Hasan’s performance. 1 In
a June 2001 evaluation, department chair Edwin Mason
and partner Robert Vechiola described Mr. Hasan’s
performance: “Zafar has a great attitude and is eager to
learn. He has good business sense and a great deal of
1
At the beginning of this litigation, Foley maintained that Mr.
Hasan’s evaluations had been destroyed and that Mr. Hasan had
been discharged for poor performance alone. R.77 at 1-2, 18.
Foley partners agreed in their depositions that Mr. Hasan’s work
always had been substandard. R.75 at 10-26. After Foley located
the largely positive evaluations, the firm began to claim that Mr.
Hasan had been fired because his work had declined and that
they lacked work for all but the most talented associates in the
department. Appellee’s Br. 7.
No. 07-3025 3
maturity for his age.” R.93, Ex. I1 at 4. The partners also
noted, though, that Mr. Hasan needed to pay more atten-
tion to detail, develop his substantive skills and submit
more polished work to his supervisors. Id. Six months later,
a group of four partners evaluated Mr. Hasan’s work for
the period between March 15 and September 15, 2001. R.93,
Ex. E1 at 1-5. The partners praised Mr. Hasan as “a hard
worker” with a “great attitude” and commented that he
managed clients and co-workers exceptionally well. Id. at
4. Although the partners repeated their criticisms of Mr.
Hasan’s drafting skills, efficiency and attention to detail, all
of the partners agreed that he was “on track for advance-
ment” and generally exceeded or met the firm’s expecta-
tions. Id. at 5. Mr. Hasan was assigned to work on a large
transaction for Foley’s client, GMAC, and maintained high
billable hours through the late summer of 2001. R.72 at 12-
13. As of September 30, 2001, Mr. Hasan had billed 2,467.5
hours, the highest in his practice group. R.77 at 4; R.93, Ex.
I1 at 11-19. He also had received praise from both GMAC
and his supervising partner for his work on the transaction.
R.93, Ex. E1 at 4; R.77 at 5.
B.
Mr. Hasan and Foley agree that matters changed after the
terrorist attacks of September 11, 2001. On the day of the
attacks, another Foley attorney heard George Simon, a
partner on the firm’s Management and Compensation
Committees, opine that “those people don’t belong
here . . . they should kick them all out.” R.75 at 7. The other
attorney understood Mr. Simon to be talking about Mus-
4 No. 07-3025
lims. Mr. Hasan responded to the events of September 11
by publishing articles and appearing on television
to publicize his view of Islam as a peaceful religion. R.77 at
3-4. According to Mr. Hasan, when he posted copies of
some of his articles on his office door, Foley partner Doug
Hagerman warned him to be “careful” and “not to upset
any sacred cows.” Id. at 4. Hagerman asked, “Are you sure
you want to have those [articles] up here?” Id.
In late 2001, one of Mr. Hasan’s supervising partners,
Bryan Jung, received an e-mail from GMAC’s in-house
counsel complaining that Foley had overbilled the project
Mr. Hasan had worked on and had provided insufficient
and “sloppy” documents. R.93, Ex. A1 at 19-24, Ex. G1 at 1.
After investigating the complaint, however, Jung con-
cluded that the problems identified by the client might not
have been anyone’s fault but instead stemmed from
communication gaps among the large number of people
working on the project. Id., Ex. G1 at 1. At the project’s
conclusion, GMAC told Mr. Hasan that Foley had done a
“great job.” R.77 at 5.
After September 11, Mr. Hasan’s billable hours began to
drop precipitously, while the average hours of other
associates in his department increased. R.77 at 4-5; R.93, Ex.
I1 at 11-19. Mr. Hasan managed to find work with the
firm’s litigation group during December of that year, but,
in 2002, he billed only 879 hours, the fewest hours billed by
any associate in his department. R.77 at 4-5. Most of the
department’s associates were assigned to work on a second
large project for GMAC, called “MINT.” Id. at 5. Mr. Hasan
was not asked to work on MINT, even though he had
No. 07-3025 5
requested more work. Id. at 6. In fact, even when GMAC
representatives asked Mr. Hasan to perform more work for
them, Foley did not assign Mr. Hasan to the MINT project.
Id. at 6. Foley maintains that, although the MINT project
occupied many associates, the Business Law Department
lacked work generally and, consequently, it assigned what
little work there was to its best associates and that Mr.
Hasan did not fall into that category. R.72 at 13.
Mr. Hasan’s May 2002 evaluation was less positive than
his previous evaluations. His supervising partners stated
that Mr. Hasan’s technical skills were behind his class
level. R.93, Ex. A1 at 25. Partners also criticized Mr.
Hasan’s efficiency, observing that he billed more time than
should have been necessary to complete projects. Id. Mr.
Hasan’s evaluators did praise his intelligence, confidence
and advocacy skills, but they warned Mr. Hasan that he
would be “outplaced” if his performance did not improve
by September. Id. at 25-26. According to Mr. Hasan, Foley
later revised the evaluation, adding that Mr. Hasan had
failed to exercise tact with a client in December 2000, some
eighteen months earlier. R.77 at 8. The firm also retracted
its threat of “outplacement.” Instead, it stated that it would
simply place a warning in Mr. Hasan’s file and evaluate his
progress again in September. Id.
Six partners evaluated Mr. Hasan’s work in his next
review. Most of the partners agreed that Mr. Hasan’s work
met or exceeded firm expectations. R.93, Ex. E1 at 6. Peter
Schaafsma, with whom Mr. Hasan had worked the most,
reported that Mr. Hasan was “one of his corporate ‘go to
guys’ ” and was “a joy to work with.” Id. at 9. Todd Pfister,
6 No. 07-3025
for whom Mr. Hasan had done little work, was not as
positive: “For various reasons, a number of partners seem
to have lost confidence in Zafar. As a result, his workload
has diminished substantially and he is falling farther
behind in his professional development.” Id. Pfister
concluded that the firm needed to “address this situation
promptly.” Id. A third partner, Robert Vechiola, mentioned
Mr. Hasan’s low hours but noted that Mr. Hasan was
willing “to do anything to improve his hours, including
relocating to another office and/or working with other
departments.” Id. After Schaafsma submitted his glowing
evaluation of Mr. Hasan’s work, Mason (the department
chair) told him that his praise was inconsistent with the
other partners’ assessments and asked him to explain his
review. R.77 at 10. In his deposition, Schaafsma stated that
he was surprised that other partners had given Mr. Hasan
negative reviews and believed that Mason was trying to
convince him to retract his praise for Mr. Hasan’s work.
R.77 at 10-11.
Mr. Hasan states that, in October 2002, Vechiola assured
him, based on a conversation between Vechiola and
Mason, that “there was no basis” for firing Mr. Hasan. R.77
at 11. Vechiola does not recall whether that conversation
ever occurred. R.77 at 11-13. In any event, in October 2002,
Mason chaired a meeting to evaluate the department’s
associates. R.75 at 40-41. Partner John Cleary attended the
meeting and later testified that, at the meeting, Simon (the
partner who made the “kicking out” comment on Septem-
ber 11) criticized Mr. Hasan’s performance, even though
Simon never had worked with Mr. Hasan. R.77 at 13.
Ultimately the partners decided to terminate Mr. Hasan’s
No. 07-3025 7
employment. Id. In a later conversation with Cleary,
Vechiola described the meeting as a “sand nigger pile-on”
and reported that, after Simon criticized Mr. Hasan, the
rest of the partners joined in. Id. Mr. Hasan says that
Vechiola told him that it was “too bad that [Simon] and
those guys took out their religious dispute in Israel on you
and had you fired.” Id. Vechiola, however, does not recall
having made that statement. R.96, Ex. P at 70-72. Foley
maintains that no partners participating in the decision to
fire Mr. Hasan discussed Islam or September 11 during the
meeting. R.72 at 17.
Mason then e-mailed the firm’s nationwide managing
partner, Stan Jaspan, to tell him that he planned to fire Mr.
Hasan. R.93, Ex. F1 at 1. He noted that the decision was not
unanimous and that he had “further background informa-
tion” that he wanted to tell Jaspan by phone. Id. Mason
admitted at his deposition that the “background informa-
tion” that he wanted to convey to Jaspan was the fact that
Mr. Hasan was a Muslim. R.77 at 15. Mason explained that
he told Jaspan that Mr. Hasan was a Muslim because he
was concerned that Mr. Hasan “could potentially bring a
claim” against the firm. Id. at 15-16.
Although Jaspan gave Mason permission to fire Mr.
Hasan, the firm held back. In November 2002, Jaspan and
another lawyer, Joseph Tyson, began searching for a job for
Mr. Hasan at one of Foley’s other offices. R.77 at 16. Tyson
stated in his deposition that the search was unusual given
that the firm already had decided to terminate Mr. Hasan’s
employment. Id. On November 22, Tyson e-mailed Jaspan
to tell him that he had had no luck finding a job in another
8 No. 07-3025
Foley office for “the well educated Muslim in Chicago.” Id.
Tyson stated that Mr. Hasan was “bright, motivated,
willing to travel anywhere.” Id. Tyson also observed that as
a general rule, Foley terminated associates either because
their performance was lackluster or because they did not
have enough work and that he would consider a transfer
only for an associate let go for lack of work. Id. Nonethe-
less, Tyson and Jaspan were unsuccessful in placing Mr.
Hasan elsewhere.
Mason informed Mr. Hasan in early December that Foley
was terminating his employment because of “deficiencies
in performance” and “a perception that he was behind the
level of where he should be” professionally. R.93, Ex. I at
96-98. Mason explained that the Business Law Department
did not have enough work and that, because Mr. Hasan
had “lost the confidence of a sufficient number of part-
ners,” the firm did not think it likely that Mr. Hasan would
“receive enough work in the future.” Id. Mr. Hasan re-
sponded that Vechiola had told him there was no basis for
firing him, but Mason explained that the partners had
reached a different conclusion. R.77 at 17.
Foley permitted Mr. Hasan to remain at the firm for six
months following his termination. Mr. Hasan claims that
Pfister told him, in February 2003, that Simon previously
(and unsuccessfully) had tried to derail the promotion of a
pregnant associate eligible for partnership. R.77 at 18.
According to Mr. Hasan, Pfister reported that Simon
laughed when another partner told him that such action
was inappropriate and that it was Pfister’s opinion that
Simon disregarded employment laws. Id. Pfister told Mr.
No. 07-3025 9
Hasan that Simon had “done the same thing” to Mr. Hasan
that he had tried to do to the pregnant associate. Id. Mr.
Hasan ultimately left his employment with Foley on June
13, 2003. R.75 at 51.
During the time Mr. Hasan worked at Foley, the Business
Law Department employed two other Muslim associates.
R.75 at 49. Foley placed one of those associates on proba-
tion in May 2002 and then transferred her to the firm’s
litigation group in 2003. Id. Foley terminated the other
Muslim associate’s employment shortly after Mr. Hasan
left the firm. Id. Foley notes that another Muslim lawyer
has worked at the firm since 1996 and became a partner in
2006, but, at oral argument, Foley conceded that the
Muslim partner was not in the Business Law Department.
About two weeks after Mr. Hasan left the firm, two Foley
partners circulated a memo to the entire Chicago office in
which they boasted that the firm’s “financial picture is
strong” and that “profits per equity partner” for 2002
exceeded the prior year’s profits by twenty-five percent.
R.96, Ex. H at 35-36. According to one partner, Foley did
not terminate any other attorneys between 2001 and July of
2003 for economic reasons. Id. at 36-37. Mason testified at
his deposition that Foley had fired other associates for lack
of work, although he could recall only a few of those
associates’ names and did not know the circumstances
under which they had been fired. R.95, Ex. 13 at 109-11. At
oral argument, Foley’s attorney admitted that the firm had
not fired any other associates in the Business Law Depart-
ment for economic reasons. In the fall of 2002, the Business
Law Department hired new associates from Foley’s
10 No. 07-3025
summer associate class to begin work in 2003. R.77 at 22;
R.95, Ex. 13 at 111-12.
C.
Mr. Hasan timely filed a charge of discrimination with
the Equal Employment Opportunity Commission
(“EEOC”). He alleged that Foley had fired him because he
is Muslim, a South Asian of Indian origin and has “brown
and olive” skin. R.93, Ex. A1 at 27. Mr. Hasan later filed a
second EEOC charge in which he claimed that Foley
retaliated against him for filing his first EEOC charge by
threatening to sue him for allegedly disclosing confidential
information.2 Id. at 42. The EEOC issued right-to-sue
notices for both charges on June 10, 2004, and Mr. Hasan
timely filed suit in August, claiming that Foley had fired
him in violation of Title VII of the Civil Rights Act, 42
U.S.C. §§ 2000e to 2000e-17. R.1 at 1.
The district court granted Foley’s motion for summary
judgment; it concluded that Mr. Hasan had failed to create
a “convincing mosaic” of direct or circumstantial evidence
that could permit a jury to conclude that Foley intention-
ally discriminated against him. Hasan v. Foley & Lardner,
LLP, 2007 WL 2225831, at *8-9 (N.D. Ill. Jul. 26, 2007). The
court observed that Simon, the partner who exclaimed that
Muslims should be “kicked out,” was not Mr. Hasan’s
2
Foley did file counterclaims against Mr. Hasan, but the
district court granted Mr. Hasan’s motion for summary judg-
ment. Foley does not challenge that decision on appeal.
No. 07-3025 11
direct supervisor and concluded that Simon’s presence on
the firm’s Management and Compensation committees did
not prove that he “wield[ed] any power over the other
partners.” Id. Moreover, continued the court, Simon’s
comment could not be evidence of discriminatory intent
because it was made on September 11, 2001, a year before
Mr. Hasan’s employment was terminated. The court also
rejected Mr. Hasan’s arguments that the timing of the
decrease in his billable hours was suspicious and that
Foley’s treatment of other Muslims in the Business Law
Department was evidence of discrimination. Although the
court concluded that Mr. Hasan had presented a question
of fact on the issue of his job performance, it apparently
believed that performance was relevant only under the
indirect method of proof and therefore could not preclude
judgment for Foley under the direct method. Finally, the
court granted summary judgment in Foley’s favor on Mr.
Hasan’s retaliation claim because it concluded that filing a
lawsuit, much less threatening one, could not amount to
retaliation unless it was an abuse of process. Mr. Hasan
appeals only the judgment on his discrimination claims.
II
DISCUSSION
A.
We review a district court’s grant of summary judgment
de novo, construing all facts and reasonable inferences in
the non-moving party’s favor. Perez v. Illinois, 488 F.3d 773,
776 (7th Cir. 2007). Summary judgment is proper if the
12 No. 07-3025
pleadings, discovery and disclosure materials on file, as
well as any affidavits, demonstrate that there is no genuine
issue of material fact and the moving party is entitled to
judgment as a matter of law. Fed R. Civ. P. 56(c). The
district court may not weigh the evidence or engage in fact-
finding but should simply determine whether there is a
genuine issue for trial. Lewis v. City of Chicago, 496 F.3d 645,
651 (7th Cir. 2007).
Mr. Hasan elected to proceed under the so-called
“direct” method of proving discrimination. See Atanus v.
Perry, 520 F.3d 662, 671 (7th Cir. 2008). Despite its name,
proof of discrimination under the direct method “is not
limited to near-admissions by the employer that its deci-
sions were based on a proscribed criterion.” Luks v. Baxter
Healthcare Corp., 467 F.3d 1049, 1052 (7th Cir. 2006). Rather,
an employee also can provide circumstantial evidence
“which suggests discrimination albeit through a longer
chain of inferences.” Id. The key to the direct method of
proof is that the evidence, whether direct or circumstantial,
“ ‘points directly’ to a discriminatory reason for the em-
ployer’s action.” Atanus, 520 F.3d at 671 (quoting Burks v.
Wis. Dep’t of Transp., 464 F.3d 744, 751 n. 3 (7th Cir. 2006)).
There are three categories of circumstantial evidence, each
of which can establish discrimination under the direct
approach. Venturelli v. ARC Cmty. Servs., Inc., 350 F.3d 592,
601 (7th Cir. 2003).3 Mr. Hasan primarily relies on the first
category, which includes “suspicious timing, ambiguous
oral or written statements, or behavior toward or com-
3
See note 4, infra.
No. 07-3025 13
ments directed at other employees in the protected group.”
Hemsworth v. Quotesmith.Com, Inc., 476 F.3d 487, 491 (7th
Cir. 2007) (internal quotation marks and citation omitted).
Some of Mr. Hasan’s evidence is also relevant to pretext,
which falls into the third category and includes evidence
“where the plaintiff is qualified for and fails to receive the
desired treatment, and the employer’s stated reason for the
difference is unworthy of belief.” Kennedy v. Schoenberg,
Fisher & Newman, Ltd., 140 F.3d 716, 725 (7th Cir. 1998)
(internal quotation marks and citation omitted).
B.
Mr. Hasan submits that the facts in the record, while
possibly weak proof of discrimination individually,
together would allow a jury to infer that Foley terminated
his employment because he is Muslim and of Indian
descent. See Troupe v. May Dep’t Stores Co., 20 F.3d 734, 737
(7th Cir. 1994) (holding that a plaintiff may prove discrimi-
nation through evidence of “ambiguous statements,
suspicious timing, discrimination against other employees,
and other pieces of evidence none conclusive in itself but
together composing a convincing mosaic of discrimina-
tion”). Those facts include Simon’s and Hagerman’s anti-
Muslim comments, Mason’s warning to Jaspan about Mr.
Hasan’s religion, the suspicious timing of the downturn in
his hours and evaluations following September 11, one
partner’s testimony that Foley fired no other associates for
economic reasons and did well financially in 2001 and
2002, the Business Law Department’s treatment of its other
14 No. 07-3025
Muslim associates and Foley’s shifting justifications for
firing Mr. Hasan.
Addressing the evidence Mr. Hasan put forward, the
district court concluded that Simon’s comment that
Muslims should be “kicked out” was not valid circumstan-
tial evidence of discrimination because Simon was not Mr.
Hasan’s direct supervisor. The court distinguished this
case from our decision in Paz v. Wauconda Healthcare &
Rehabilitation Center, LLC, 464 F.3d 659, 666 (7th Cir. 2006),
by pointing out that the discriminatory statements in that
case were made by the plaintiff’s direct supervisor. Paz
does not require, however, that a court ignore comments
made by someone who is not directly responsible for an
employee’s supervision. Rather, derogatory remarks are
relevant if they are made by someone who provided input
into the adverse employment decision. See Gorence v. Eagle
Food Ctrs., Inc., 242 F.3d 759, 762 (7th Cir. 2001) (quoting
Hunt v. City of Markham, Ill., 219 F.3d 649, 652 (7th Cir.
2008)). The record shows that Simon attended the meeting
at which the partners decided to fire Mr. Hasan and that he
participated in that decision. That others were also in-
volved in making that decision does not make Simon’s
participation irrelevant. See Lewis, 496 F.3d at 652 (holding
that discriminatory comments by someone “involved” in
an employment decision may be evidence of discrimina-
tion); Hunt, 219 F.3d at 653 (holding that discriminatory
comments by someone who “influenced” an employment
decision may be evidence of discrimination). There is also
evidence in the record that Simon’s criticisms at that
meeting incited anti-Muslim and racially charged commen-
tary from other partners. Vechiola’s description of the
No. 07-3025 15
meeting as a “sand-nigger pile on” suggests as much, as
does Pfister’s comment that Simon had targeted Mr. Hasan
just as he had targeted another lawyer, albeit unsuccess-
fully. Viewing the facts in the light most favorable to Mr.
Hasan, the record would allow the rational inference that
Simon not only participated in the decision to fire Mr.
Hasan but also may have instigated it.
The district court also concluded that Simon’s comment
could not be evidence of discriminatory intent because he
expressed his anti-Muslim sentiments on September 11,
2001, a year before Mr. Hasan was fired. The recency of
discriminatory comments, together with who made the
comments and how extreme those comments were, is
relevant to whether they help to build a total picture of
discrimination. Paz, 464 F.3d at 666. But the district court
may not view recency alone as the decisive factor. Id.; see
also Lang v. Ill. Dep’t of Children & Family Servs., 361 F.3d
416, 419 (7th Cir. 2004) (holding that the district court
focused on too short a time span). Moreover, Simon and
Hagerman made their comments around the time that the
Business Law Department began to steer work away from
Mr. Hasan, which was a factor upon which they ultimately
relied to fire him. See Lang, 361 F.3d at 419-21 (holding that,
viewed in the long term, employee’s record of positive
performance reviews followed by over a year of repri-
mands culminating in his termination was evidence of
retaliation); Sitar v. Ind. Dep’t of Transp., 344 F.3d 720, 728
(7th Cir. 2003) (noting that the court may need to examine
events over a longer period of time).
The district court also believed that the fact that Mr.
Hasan’s hours fell after September 11 did not, on its own,
16 No. 07-3025
raise any suspicions. Suspicious timing is, however,
relevant to whether an employer’s conduct was discrimina-
tory. See Culver v. Gorman & Co., 416 F.3d 540, 546 (7th Cir.
2005) (“[S]uspicious timing may permit a plaintiff to
survive summary judgment if there is other evidence that
supports the inference of a causal link.”). Moreover,
evidence that would be weak if considered alone can, if
bolstered by other facts in the record, support an inference
of discrimination. See Sylvester v. SOS Children’s Vills. Ill.,
Inc., 453 F.3d 900, 903 (7th Cir. 2006); Troupe, 20 F.3d at 736.
Mr. Hasan’s post-September 11 decrease in hours alone
may not carry much meaning, but it gains substantial
significance in the context of (1) partners’ anti-Muslim
comments, (2) their refusal to give him work even when he
asked for it, (3) Mr. Hasan’s good relationship with the
department’s primary client, (4) Mr. Hasan’s previous
positive performance reviews and (5) the fact that other
associates had sufficient work and even increased their
hours on average during the relevant period.
The district court next interpreted Mason’s e-mail and
phone call to Jaspan regarding Mr. Hasan’s religion as
evidence that the firm paid attention to equal employment
laws. A jury could infer, however, that Mason wanted to
talk to Jaspan without leaving a written record precisely
because he was worried that Foley had fired Mr. Hasan
unlawfully. Such an inference is particularly strengthened
by the anti-Muslim comments in the record. This is exactly
the type of ambiguous fact, susceptible to competing
interpretations, that should be evaluated by a fact-finder.
See Paz, 464 F.3d at 665.
No. 07-3025 17
The district court also held that Mr. Hasan’s evidence
regarding Foley’s treatment of other Muslims in the
Business Law Department was irrelevant to his discrimina-
tion argument. Our precedents establish, however, that
“behavior toward or comments directed at other employ-
ees in the protected group” is one type of circumstantial
evidence that can support an inference of discrimination.
Hemsworth, 476 F.3d at 491; see also Phelan v. Cook County,
463 F.3d 773, 781 (7th Cir. 2006). The Supreme Court also
has held that this kind of “me too” evidence can be rele-
vant to a discrimination claim. See Sprint/United Mgmt. Co.
v. Mendelsohn, 128 S. Ct. 1140, 1147 (2008) (discussing
evidence of discrimination by other supervisors in the
context of an ADEA suit); Goldsmith v. Bagby Elevator Co.,
513 F.3d 1261, 1285-86 (11th Cir. 2008) (upholding admis-
sion of evidence of racial discrimination against other
employees to prove an employer’s intent to discriminate).
The Court made clear that the relevance of “me too”
evidence cannot be resolved by application of a per se rule.
Sprint, 128 S. Ct. at 1147. Instead, whether such evidence is
relevant depends on a variety of factors, including “how
closely related the evidence is to the plaintiff’s circum-
stances and theory of the case.” Id.; see also Fed. R. Evid.
401, 403. Rather than dismiss this evidence as irrelevant per
se, the district court should have analyzed whether, if
proven, the fact that Foley fired or transferred all other
Muslim associates from its Business Law Department
would be a relevant component of the “mosaic” of evi-
dence.
Foley submits that its treatment of other associates
matters only if Mr. Hasan can show that the firm gave
18 No. 07-3025
preferential treatment to similarly situated non-Muslim
employees. Mr. Hasan cannot prevail, Foley contends,
because he has not produced any evidence regarding
similarly situated employees. This argument confuses the
direct method of proving employment discrimination with
the indirect method. It is true that, under the indirect
method of proof, a plaintiff must produce evidence of how
the employer treats similarly situated employees. See Faas
v. Sears, Roebuck & Co., 532 F.3d 633, 641 (7th Cir. 2008);
Elkhatib v. Dunkin Donuts, Inc., 493 F.3d 827, 830 (7th Cir.
2007). But the direct method of proof imposes no such
constraints.4 See Faas, 532 F.3d at 641. In fact, one reason a
plaintiff might select the direct method of proof rather than
the indirect is that, as Mr. Hasan’s attorney explained at
oral argument, there simply are no similarly situated
employees. Mr. Hasan chose to make his case under the
4
Under the direct method of proof, circumstantial evidence of
discrimination includes: “(1) suspicious timing, ambiguous oral
or written statements, or behavior toward or comments directed
at other employees in the protected group; (2) evidence, whether
or not rigorously statistical, that similarly situated employees
outside the protected class received systematically better
treatment” and (3) evidence “where the employee was qualified
for and fails to receive the desired treatment, and the employer’s
stated reason for the difference is unworthy of belief.”
Hemsworth v. Quotesmith.Com, Inc., 476 F.3d 487, 491 (7th Cir.
2007); Kennedy v. Schoenberg, Fisher & Newman, Ltd., 140 F.3d
716, 725 (7th Cir. 1998). Thus, although evidence of preferential
treatment of similarly situated employees can be relevant
under the direct method of proof, Mr. Hasan was under no
obligation to present such evidence.
No. 07-3025 19
direct method of proof, and, therefore, Foley’s argument is
unavailing.
Finally, the record, viewed in the light most favorable to
Mr. Hasan, supports neither of Foley’s purported reasons
for firing Mr. Hasan. Foley initially claimed that it fired Mr.
Hasan for poor performance. With the exception of
Schaafsma, who is no longer at the firm, Mr. Hasan’s
supervising partners all testified at their depositions that,
at the time Mr. Hasan was fired, his work was uniformly
unacceptable. However, after Foley located Mr. Hasan’s
work evaluations, which were mostly positive, the firm
changed its tune, maintaining that it actually fired Mr.
Hasan not because his work was unacceptable but because
it only had enough work to keep the best associates in the
department occupied. Moreover, Mason’s attempt to
convince Schaafsma to retract his praise for Mr. Hasan’s
work permits an inference that the Business Law Depart-
ment intended to sabotage Mr. Hasan’s evaluations. This
contradictory evidence calls into question the credibility of
the partners’ deposition testimony; credibility determina-
tions are reserved to the jury. See Ritchie v. Glidden Co., 242
F.3d 713, 723 (7th Cir. 2001). Indeed, the district court
acknowledged this inconsistency when it recognized that
Mr. Hasan had presented a genuine issue of material fact
on the question of performance. Issues of material fact
cannot be resolved on summary judgment. The firm
cannot, therefore, avoid trial by claiming that its real
reason for firing Mr. Hasan was his supposed poor perfor-
mance, when there is an issue of material fact as to whether
this proffered reason is merely a pretext. See Lewis v. Sch.
Dist. #70, 523 F.3d 730, 743-44 (7th Cir. 2008) (considering
20 No. 07-3025
relevance of pretext to direct method of proof of discrimi-
nation); Piraino v. Int’l Orientation Res., Inc., 84 F.3d 270, 275
(7th Cir. 1996) (same); see also Gates v. Caterpillar, Inc., 513
F.3d 680, 691 (7th Cir. 2008) (explaining that pretext means
that employer’s proffered reason for firing employee was
a lie).
A reasonable jury could also find that Foley’s alternative
explanation—that it fired Mr. Hasan because the firm did
not have enough work for all the associates in the Business
Law Department—is pretextual as well. The record is
inconsistent as to whether Foley fired any associates in the
Business Law Department other than Mr. Hasan for lack of
available work during the economic downturn, although,
at argument, Foley’s lawyer assured us that it had not. One
partner reported that Mr. Hasan was the only associate
fired for lack of work; another testified at his deposition
that Foley had dismissed other lawyers because of the
economic climate. And the internal firm-wide memo
claimed that Foley’s economic performance in 2001-2002
was strong, while Foley now contends that the firm was in
a downward spiral that required it to jettison Mr. Hasan.
A jury could reasonably infer from these facts that Foley
partners directed work towards other, non-Muslim associ-
ates in the Business Law Department in order to use Mr.
Hasan’s lack of work as a pretext to fire him. Similarly, it
is unclear from the record why Foley hired new associates
into its Business Law Department immediately after firing
Mr. Hasan. It is possible that the firm lacked work for mid-
level associates with Mr. Hasan’s skill set and instead
needed attorneys with different experience or training. A
jury could also conclude, however, that the Business Law
No. 07-3025 21
Department hired new associates because it actually had
plenty of work. This issue cannot be resolved at summary
judgment; a fact-finder must decide which interpretation
of the record is correct. See Paz, 464 F.3d at 665.
Putting together these items of circumstantial evidence,
a reasonable jury could conclude that Foley terminated Mr.
Hasan’s employment because he is Muslim and of Indian
descent. That “mosaic” of evidence, together with the
unresolved questions of fact, is sufficient under the direct
method of proof for Mr. Hasan to survive summary
judgment on his discrimination claims.
Conclusion
Accordingly, the judgment of the district court is re-
versed. The case is remanded to the district court for
proceedings consistent with this opinion.
R EVERSED and R EMANDED
12-15-08