Plaintiff’s “Mosaic of Evidence” Sufficient to Survive Summary Judgment in Title VII Case

In Hasan v. Foley & Lardner, the Court of Appeals for the Seventh Circuit reversed a District Court’s grant of summary judgment in favor of the law firm Foley & Lardner, finding that a genuine issue of material fact existed as to Foley’s true reason for firing Mr. Hasan.

The plaintiff, Zafar Hasan, is a Muslim of Indian descent and was an associate at the law firm of Foley & Lardner. Mr. Hasan joined Foley in October of 2000 and initially received positive performance evaluations. However, after September 11, 2001, matters changed for Mr. Hasan. On the day of the attacks, another Foley attorney overheard a partner on the firm’s Management and Compensation Committee state that “those people don’t belong here . . . they should kick them all out.” Mr. Foley responded by posting articles on his office door describing Islam as a peaceful religion. In response to the articles, another Foley attorney commented to Hasan that he should be careful “not to upset any sacred cows.” Mr. Hasan’s fortunes continued to worsen and he began to receive negative evaluations in 2002. His billable hours – which had been among the highest in the firm – also dropped off precipitously. In October of 2002, a meeting was held to evaluate the department’s associates. During the meeting, the partner who made the “kicked out” comment was critical of Mr. Hasan’s work (although the attorney had never actually worked with Mr. Hasan). There was testimony that other attorneys at the meeting were influenced by these critical comments. There was also evidence that one of the attorneys who attended the meeting later commented to Mr. Hasan that it was “too bad that those guys took out their religious dispute in Israel on you and had you fired.”

Mr. Hasan sued Foley claiming that he was fired after the September 11, 2001 terrorist attacks because of his religion, race, national origin, and color. Finding in favor of Foley, the trial court concluded that Mr. Hasan “failed to create a ‘convincing mosaic’ of direct or circumstantial evidence that could permit a jury to conclude that Foley intentionally discriminated against him” and entered summary judgment in Foley’s favor. Mr. Hasan appealed.

Reversing the trial court, the Court of Appeals for the Seventh Circuit concluded that Mr. Hasan had in fact presented a sufficient “mosaic” of circumstantial evidence to permit a jury to conclude that Foley terminated Mr. Hasan because of his religion and national origin. In arriving at this conclusion, the appellate court noted that discriminatory comments made by someone who provided input into or influenced the employment decision (as opposed the employee’s direct supervisor) may be relevant. The court also noted that the recency of discriminatory comments to the adverse employment action is relevant to the “total picture of discrimination” but that recency alone may not be viewed as a decisive factor. Finally, the court concluded that “behavior toward or comments directed at other employees in the protected group” (also known as “me too” evidence) is relevant and can support an inference of discrimination.

Hasan v. Foley & Lardner, LLP, No. 07-3025 (7th Cir. Jan. 21, 2009).