Case Analysis
Case Questions
Are you persuaded by the state’s evidence that it had an individual of a different national
origin who was treated similarly to Herawi? If Ward (or other managers) treated everyone
equally poorly, perhaps there is no national origin claim.
What if Ward’s defense is simply that her poor treatment of Herawi had nothing to do with national origin but that she just really did not like Herawi specifically? Would that be an acceptable defense, and could it have saved the state’s case?
The court explains that pretext may be based on comments depending on “whether their
substance, context, and timing could permit a finding that the comments are causally
related to the adverse employment action at issue.” What elements would you look to in
order to find pretext if you were on a jury?
The court explains that timing alone would not be enough to satisfy the causality requirement of retaliatory discharge. Given the facts of this case, if you were in charge of the department and if Herawi truly were not performing at an acceptable level and you wished to terminate her after all of these circumstances, how might you have better protected the department from a retaliatory discharge claim?