Kumar V. Hilton Hotels Corp.

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

____________________________
MANOJ KUMAR,
Plaintiff,

v.

HILTON HOTELS CORPORATION,
Defendant.
____________________________
No. 2:08-cv-02689-BBD-tmp

MEMORANDUM OPINION ON ORDER DENYING DEFENDANT HILTON HOTELS CORPORATION’S MOTION FOR SUMMARY JUDGMENT

Before the Court is Defendant Hilton Hotels Corporation’s (“Hilton”) Motion for Summary Judgment. (D.E. #118). Hilton filed the instant motion pursuant to Rule 56 of the Federal Rules of Civil Procedure arguing that no genuine issues of material fact exist and that it is entitled to judgment as a matter of law. For the reasons set forth herein, Hilton’s Motion for Summary Judgment is DENIED.

I. Factual Background

This case arises from allegations that Plaintiff Manoj Kumar (“Kumar”), a former employee of Hilton’s information technology department, was unlawfully denied a promotion on the basis of his national origin and alienage and was retaliated against for complaining of the discrimination. Kumar asserts that Hilton’s acts were in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, et seq., (“Title VII”), Section 1981 of the Civil Rights Act, 42 U.S.C. § 1981, et seq., (“Section 1981”), and the Tennessee Human Rights Act, Tenn. Code Ann. § 4-21-101, et seq., (“THRA”).

Kumar is a computer technician of Indian national origin and alienage. He initially worked as a contractor providing computer services for Hilton, but in 2002, Kumar was one of only five experienced contractors that was offered permanent employment with Hilton during its transition to an in-house information-technology department.

As an incentive for Kumar to accept Hilton's offer of employment, the company offered to assist him in obtaining his H1-B work visa so that he would be permitted to work lawfully in the United States. At least two other employees of foreign national origin were offered assistance with obtaining their work visas, at a cost of approximately $1,500.00 per person for the company. In order to obtain the work visa, Hilton was required to explain the type of work that the employee was to perform and represent that a United States citizen was not available for the type of work. Hilton also offered to support Kumar's United States citizenship application.

From 2003 until 2006, Kumar's job performance was generally ranked as “Fully Meets Standard” or “Talented.” In 2006, Kumar states that his supervisor told him that he would be promoted immediately if he did not need Hilton to sponsor his citizenship application. Subsequently, Kumar asserts that he wrote his supervisor an email and referenced her comments that his promotion was conditional upon his citizenship. Kumar informed his supervisor and other Hilton management that he no longer needed Hilton’s support for his citizenship application because his spouse would be supporting his application. However, Hilton contests the claim that Kumar's citizenship was an impediment to any promotion, stating that his supervisor believes she probably told Kumar that she would like to promote him but that she does not recall conditioning the promotion on Kumar's citizenship.

Despite his three years of positive reviews, Kumar's 2007 review stated that he was assessed as "Vulnerable" in the categories of relationships with supervisor, team work, relationship with coworkers, and conflicts. The review states that Kumar had completely disregarded his supervisor's
directions on a few occasions, causing problems for the department. Further, the review found that Kumar had a high turnover of resources on his team, that he needed to improve his relationships with the information-technology group, that he needed to resolve unproductive conflicts with his team members without the need for intervention of management, and that he needed to earn the trust and confidence of his team members.

The 2007 review stated that Kumar would have two main opportunities in the year to improve his leadership skills, but that in order to do so, he would have to grow his team, strengthen relationships with his co-workers, and obtain the collaboration of others. Hilton states that these
concerns had also been raised with Kumar in a counseling session in advance of the negative performance review. Kumar initially refused to sign the 2007 performance review, and he was given three days to present a rebuttal. Kumar failed to offer such a rebuttal, which resulted in further counseling from his supervisor. Following the 2007 performance review, Hilton claims that Kumar's job performance continued to deteriorate. Hilton states that Kumar refused to follow procedures under the company's organizational chain and that they received complaints that he was patronizing towards a female manager.

On February 19, 2007, Kumar's supervisor's position as Director of Website Development was posted as open for applications. Kumar notified other managers that he was interested in being considered for the promotion. Instead of accepting his application for the promotion, Kumar was given his first written warning on February 23, 2007, instructing him to follow directions from his supervisors, improve his working relationships with his co-workers, and improve his decision-making by notifying management of critical issues. Hilton states that Kumar's performance did not improve following the first written warning. On April 11, 2007, Kumar received another performance warning, and on May 21, 2007, Kumar received a final written warning about the same issues that he had been receiving counseling.

On May 21, 2007, Plaintiff met with human resources to discuss his concerns regarding his numerous warnings and his failure to be promoted. Hilton asserts that Kumar did not raise any issues of discrimination on the basis of national origin or alienage at that time. Following this meeting, his supervisors continued to report performance issues, including a complaint that Kumar physically threatened a female employee. Kumar asserts that he perceived that he was demoted on May 29, 2007, when an employee that was his subordinate was raised  to a supervisory role. Kumar expressed his interest in a promotion to a second job opening, Director of Website Operations, on July 24, 2007. Kumar asserts that he was told by Hilton management he would not be receiving a promotion.

In August 2007, Hilton made its initial decision to terminate Kumar's employment. On August 29, 2007, Hilton prepared its notice of termination setting forth explanations for its decision. However, before Hilton formally terminated Kumar, Hilton received a letter from Kumar's attorney setting forth his employment grievances. After being contacted by Kumar's counsel, Hilton determined that it would not terminate his employment at that time. However, Hilton states that the performance issues continued, including failure to follow directions, lack of communication, and walking away from his supervisor while they were discussing an issue. Hilton continued to counsel Kumar from August until December of 2007, including asking him to commit to certain goals to improve his performance. Hilton states that, because Kumar did not positively respond to the counseling, it terminated his employment on December 7, 2007.

Kumar filed his Complaint in this Court on October 14, 2008, which was later amended on February 4, 2009. Although Kumar had not filed any formal complaint of discrimination at Hilton, he alleges that he began perceiving discrimination in May 2006 when a manager remarked that Kumar should start a business selling statues of Ganesh, a Hindu god. Kumar states that another manager instructed Kumar to "adapt to this culture," although Kumar did not clarify to what culture the manager was referring. Kumar states that he perceived that a manager ridiculed the way he pronounced the acronym "SAP" by making faces and stating that it sounded as if Kumar was saying the word "Mississippi." Finally, another Hilton employee states that he heard a manager say words to the effect of "give it to the towel heads" while discussing work that needs to be done.

On October 29, 2009, Hilton filed the instant Motion for Summary Judgment, which asserted that Kumar’s Title VII, Section 1981, and THRA claims of discrimination and retaliation should be dismissed as a matter of law. On November 23, 2009, Kumar filed his Response to Hilton’s motion, but that response was stricken by the Court on December 2, 2009 for failure to comply with the Local Rules. The Court permitted Kumar to file an amended response with five days. On December 8, 2009, Kumar filed his Amended Response. On December 14, 2009, Hilton filed its Reply to Kumar’s Amended Response after receiving leave of court.

II. Legal Standard

Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). Although hearsay evidence may not be considered on a motion for summary judgment, Jacklyn v. Schering-Plough Healthcare Prods. Sales Corp., 176 F.3d 921, 927 (6th Cir. 1999), evidentiary materials presented to avoid summary judgment otherwise need not be in a form that would be admissible at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); Thaddeus-X v. Blatter, 175 F.3d 378, 400 (6th Cir. 1999). The evidence and justifiable inferences based on facts must be viewed in a light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Wade v. Knoxville Utilities Bd., 259 F.3d 452, 460 (6th Cir. 2001).

Summary judgment is proper “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322. The moving party can prove the absence of a genuine issue of material fact by showing that there is a lack of evidence to support the nonmoving party’s case. Id. at 325. This may be accomplished by submitting affirmative evidence negating an essential element of the nonmoving party’s claim, or by attacking the nonmoving party’s evidence to show why it does not support a judgment for the nonmoving party. 10a Charles A. Wright et al., Federal Practice and Procedure § 2727 (2d ed. 1998).

Once a properly supported motion for summary judgment has been made, the “adverse party may not rest upon the mere allegations or denials of [its] pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e). A genuine issue for trial exists if the evidence would permit a reasonable jury to return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To avoid summary judgment, the nonmoving party “must do more than simply show that there is some metaphysical doubt as to the
material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

III. Analysis

A. National Origin Discrimination—Title VII

First, the Court must determine whether a genuine issue of material fact exists as to Kumar’s claim of discrimination on the basis of national origin. Under Title VII, discrimination on the basis of “race, color, religion, sex, or national origin” constitutes an unlawful employment practice. 42 U.S.C. § 2000e-2(a). A plaintiff may establish a claim of discrimination either by introducing direct evidence of discrimination or by offering circumstantial evidence which would support an inference of discrimination. Kline v. Tennessee Valley Auth., 128 F.3d 337, 348 (6th Cir. 1997). “The direct
evidence and the circumstantial evidence paths are mutually exclusive; a plaintiff need only prove one or the other, not both.” Id. Under the direct-evidence approach, a plaintiff must present evidence that, “if believed, requires the conclusion that unlawful discrimination was at least a motivating factor in the employer’s actions.” Jacklyn v. Schering Plough Healthcare Prods. Sales Corp., 176 F.3d 921, 926 (6th Cir. 2000) (emphasis added). To successfully pursue a direct-discrimination claim, the evidence must establish, without any inferences or presumptions, that discriminatory motives caused the adverse employment action. Nguyen v. City of Cleveland, 229 F.3d 59, 563 (6th Cir. 2000); see also Brack v. Shoney’s, Inc., 249 F. Supp. 2d 938, 947 (W.D. Tenn. 2003). If the plaintiff introduces evidence of an adverse employment action on the basis of his protected status, the burden of persuasion shifts to the employer to prove that it would have taken the adverse employment action even had it not been motivated by discrimination. Manzer v. Diamond Shamrock Chemicals Co., 29 F.3d 1078, 1081 (6th Cir. 1994) (citing Price Waterhouse v. Hopkins, 490 U.S. 228, 244-45 (1989)).

Under the circumstantial evidence approach, the tripartite test established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and later clarified in Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248 (1981), applies to determine if the conduct violated Title VII. First, a plaintiff must establish a prima facie case of discrimination, which generally requires as follows: (1) he was a member of a protected class;  (2) he suffered an adverse employment action;  (3) he was qualified for the position; and (4) he was treated differently than similarly situated, non-protected employees.

DiCarlo v. Potter, 358 F.3d 408, 415 (6th Cir. 2004). In the context of promotional decisions, the Sixth Circuit has specifically articulated the requirements of a prima facie case as follows:  (1) the employee belongs to a protected group; (2) the employee applied and was qualified for a desired promotion for which the employer was seeking applicants; (3) despite the employee’s qualifications, he was rejected; (4) the position was filled by a person of comparable or lesser qualifications.

Burton v. Ohio, 798 F.2d 164, 165 (6th Cir. 1986).

If plaintiff establishes the prima facie case, a mandatory presumption of discrimination is created and the burden shifts to the defendant to “articulate some legitimate, nondiscriminatory reason for the employee’s rejection.” McDonnell Douglas, 411 U.S. at 802. If the defendant meets this burden, then a plaintiff must prove that the reason proffered by the defendant is a pretext to hide unlawful discrimination. Id. The plaintiff may establish that the proffered reason is a mere pretext by showing that the stated reasons had no basis in fact, that the stated reasons were not the actual reasons, and that the stated reasons were insufficient to explain the defendant’s action. Wheeler v. McKinley Enters., 937 F.2d 1158, 1162 (6th Cir. 1991). “A reason cannot be proved to be a pretext for discrimination unless it is shown both that the reason was false, and that discrimination was the real reason.” St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 515 (1993).

1. Direct Evidence Test

In the instant case, the Court must first determine whether Kumar has introduced direct evidence of discrimination on the basis of national origin.¹ Hilton asserts that Kumar “incorrectly contends that three stray remarks by Senior Director Kurt Gustafson (“Gustafson”) are direct evidence of discrimination.” Def.’s Memo. in Support of Summ. J. at 16. Specifically, Hilton refers to Kumar’s allegations that Gustafson told him he should consider starting a business selling statues of a Hindu god, that Gustafson mocked his accent and asked him to “repeat things unnecessarily,” and that another coworker heard Gustafson make a comment to the effect of “give it to the towel heads,” allegedly in reference to Kumar and another Pakistani employee. Def.’s Mot. for Summ. J., Ex. 1 at 104, 134-35, 138-39; Ex. 23 at 52-54, 73, 75-77.

Under the direct-evidence test, the Court finds that no direct evidence has been presented that Kumar was denied a promotion or terminated expressly on the basis of his Indian national origin. Instead, the evidence of Gustafson’s comments would, if credited by the trier of fact, allow merely an inference of unlawful motives for Hilton’s acts. Because the direct-evidence test under Title VII does not allow the fact-finder to rely upon any inferences whatsoever to establish such a causal connection, see Nguyen, 229 F.3d at 563; Jacklyn, 176 F.3d 926; Brack, 249 F. Supp. 2d 947, the Court must find that there is no direct evidence of discrimination in this case. However, such a conclusion does not prohibit Kumar from pursuing a Title VII claim if the requirements for a circumstantial discrimination claim are present. Accordingly, the Court will consider this alternate method of establishing a Title VII claim of discrimination on the basis of national origin.

2. Circumstantial Evidence Test

Under the circumstantial-evidence test, the Court must begin by determining if Kumar has met the requirements of the prima facie case. In the instant case, neither Kumar nor Hilton contest that Kumar is a member of a protected group or that Kumar was denied a promotion and eventually terminated from his employment at Hilton. However, Kumar and Hilton vigorously contest whether Kumar was qualified for the promotion and whether the position was filled by a person of comparable or lesser qualifications.

Kumar alleges that he was the “most well-educated man in the department” and was “a very experienced and successful website developer slated for promotion and rewarded with high pay, bonuses, good evaluations, a clean disciplinary record, a tireless work ethic, and the responsibility to manage the largest number of resources in the website development group at Hilton over a four year period.” Pl.’s Resp. at 1. Specifically, Kumar asserts that he “secured a very high percentage”
in high school, was accepted to the Moscow Power Engineering Institute, which he contends is a prestigious educational institution in Russia, and participated in the bachelor’s degree and master’s degree programs in computer science. Pl.’s Resp., Ex. 1, at 29:3-22. Kumar claims that he directly supervised a growing number of other individuals during his employment at Hilton and that he earned an overall score of three or four out of five on his performance reviews from 2003 to 2006, which correlates to “Fully Meets Standard” or “Talented.” Pl.’s Resp., Exs. 4-7.

Kumar states that one of his co-workers believes he was a “diligent, resourceful and fastidious employee” and that the success of certain Hilton projects was due in primary part to Kumar’s efforts. Pl.’s Resp., Ex. 8, at 68:2-16. Likewise, Kumar asserts that another manager selected Kumar as “an indication of his good performance” to be part of the consolidated team in Memphis, even though “many people” were terminated that the same juncture. Pl.’s Resp., Ex. 2, 36:7-37:6. Further, Kumar claims that management selected him for a project known as HICOM because of his “interwoven experience,” his “general knowledge,” his “general age and maturity,” his “overall knowledge,” his “good, rounded knowledge set,” his level of experience in a platform and architecture known as BEA, his knowledge of the Brand.com project, and his international experience and language abilities. Pl.’s Resp., Ex. 2 at 84:17-86:5, 103:6-15, 104:5-15; Ex. 3 at 77:21-78:6; Ex. 10 at 91:21-92:22. During his work on the HICOM project, Kumar asserts that he managed and supervised consultants hired to assist with the project. Pl.’s Resp. Ex. 3, at 5-14.

In addition to the HICOM project, Kumar alleges that he “drove and managed, from inception to implementation” certain website enhancements that “contributed to an unprecedented increase in revenue from website booking,” as was promoted in a company news release. Pl.’s
Resp., Ex. 45 ¶ 3. Kumar states that Gustafson was not aware of him ever missing a project deadline at any time through the end of 2006, Pl.’s Resp., Ex. 3 at 211:19-212:2, and that yet another coworker has affirmed that he believes that Kumar was at all times qualified for the positions he held at Hilton, Pl.’s Resp., Ex. 11, at 159:12-14. Kumar asserts that he completed an Individual Development Plan in September 2007, which was intended to relate to his employment through September 2008. Pl.’s Resp., Ex. 11, at 91:6-20. Kumar states that he attended a staff meeting in which he was told that “basically . . . whoever is present today in this meeting room will be [with the company] throughout 2008 because [management] already has the budget approved and everything.” Pl.’s Resp., Ex. 34 at 280:10-281-16.

In response, Hilton asserts that Kumar was not as qualified as the employees that received the promotion. First, Hilton claims that Kumar was ineligible for the promotion as a matter of company policy because of his performance-related reprimands in 2007. Specifically, Hilton claims that Vera Wakefield (“Wakefield”) issued a performance warning to Kumar on November 28, 2006 and a written warning to Kumar on February 23, 2007. Def.’s Mot. for Summ. J., Ex. 5, at 71-84, 113-123. Hilton states that this written warning rendered Kumar ineligible under Hilton’s job posting procedures from seeking or receiving a promotion, as the job posting requires that candidates “[m]ust meet expectations in their current position.” Def.’s Mot. for Summ. J., Ex. 7, at 3. Further, Hilton states that management believe that the candidate chosen for the promotion was a good selection for the promotion and that Kumar did not have the “skill sets” for the position. Def.’s Mot. for Summ. J., Ex. 3, at 169-171. In addition to Kumar’s reprimands, he scored two out of five on his 2007 performance review, which correlates to a “Vulnerable” rating.

Upon review of the evidence presented by Kumar and Hilton, the parties have presented extensive evidence supporting their respective positions as to whether Kumar was adequately qualified for the promotion. Specifically, Kumar has presented evidence that he was highly educated, had a history of positive performance reviews, had contributed meaningfully to Hilton as an employee, had been acknowledged for his strong performance, and had been promised continued employment and promotions. On the contrary, Hilton alleges that Kumar’s performance declined by 2007 and that Kumar faced multiple reprimands.

As Title VII requires a plaintiff to establish both that he was qualified for the promotion and that it was filled by an individual with comparable or lesser qualifications, the Court concludes that a genuine issue of material fact exists in the instant case on these two prongs of the prima facie case. Accordingly, judgment as a matter of law is not proper as to Kumar’s Title VII claim of discrimination on the basis of national origin, and Hilton’s motion for summary judgment as to this claim is DENIED.

B. Alienage Discrimination–Section 1981

Next, the Court must determine whether a genuine issue of material fact exists with regard to Kumar’s claim of discrimination on the basis of his non-citizen alienage. Section 1981 prohibits alienage discrimination in, inter alia, the making and enforcement of contracts, including contracts of employment. 42 U.S.C. § 1981; see also Anderson v. Conboy, 156 F.3d 167, 169 (2d Cir. 1998). Section 1981 claims of discrimination based upon alienage are analyzed under the same framework as Title VII discrimination claims. Johnson v. University of Cincinnati, 215 F.3d 561, 573 n.5 (6th Cir. 2000). Specifically, a plaintiff may establish such claims either by direct or circumstantial evidence. DiCarlo v. Potter, 358 F.3d 408, 414 (6th Cir. 2004). If a plaintiff intends to establish discrimination by circumstantial evidence, it is subject to the three-part McDonnell Douglas/ Burdine analysis. See McDonnell Douglas, 411 U.S. 792 (1973); Burdine, 450 U.S. 248 (1981). In alienage discrimination cases, the elements of a prima facie case have been set forth as follows:

(1) that the plaintiff is an alien;
(2) that the defendant intended to discriminate on the basis of alienage; and
(3) that the discrimination interfered with the plaintiff’s right to make and enforce contracts.

See, e.g.Mian v. Donaldson, Lufkin & Jenrette Sec. Corp., 7 F.3d 1085, 1087 (2d Cir. 1993).

1. Direct Evidence Test

Initially, Kumar asserts that direct evidence of discrimination on the basis of alienage exists in the instant case.² Kumar contends that Wakefield expressly instructed him that she would promote him immediately if he no longer needed Hilton to sponsor his permanent residency application. Pl.’s Resp., Ex. 1 at 98:25-99:8. Kumar states that he advised Wakefield that he was interested in the promotion because he was pursuing permanent residency through his spouse and that he did not need Hilton to sponsor his application. Pl.’s Resp., Ex. 1 at 102:22-103:7. Kumar asserts that he reminded Wakefield of her promise to promote him to a management position on the condition that he no longer needed Hilton to sponsor his permanent residency in an email on January 10, 2007. Pl.’s Resp., Ex. 32. Kumar states that Wakefield’s response to his email did not address her conditional promise to promote him depending upon his residency classification. Pl.’s Resp., Ex. 10, at 182:18-183:5.

Hilton responds that Kumar’s status was not an impediment to any promotion within the company. Specifically, Hilton states that Kumar was hired while he was a non-citizen and was sponsored for a “work visa” by Hilton at its expense. Def.’s Mot. for Summ. J., Ex. 1 at 56-57; Ex. 3 at 48-50, 69-70, 167. Hilton states that in order to obtain a work visa for a prospective employee, an employer must explain the type of work to be performed and must represent that a United States citizen is not available for that work. Def.’s Mot. for Summ. J, Ex. 3 at 13-14; Ex. 4 at 53-55, 90-92; Ex. 5 at 101-103. As a result, Hilton explains that certain difficulties arise if a non-citizen who does not have permanent residence wishes to change the character of the work he is performing. Id. Hilton argues that Wakefield was initially unaware of the legal requirements involved with promoting Kumar and that a manager that is not a legal expert should not be expected to understand such regulations. Def.’s Mot. for Summ. J. at However, Hilton asserts that despite the initial confusion, Kumar was not denied the promotion on the basis of his citizenship status but instead on
the basis of his poor job performance. Id.

In the instant case, Kumar has presented direct evidence that could allow a trier of fact to conclude that he was denied a promotion on the basis of his alienage, as his supervisor expressly stated that his citizenship may be an impediment to his promotion. Although Hilton provides an alternate explanation for Wakefield’s remarks, the Court must find that Kumar has met the first requirement of the direct-evidence test due to the evidence he has presented. Under such circumstances, if a plaintiff produces direct evidence of discrimination, the burden of persuasion shifts to the employer to prove that it would have taken the adverse employment action even had it not been motivated by discrimination. As to this prong, the parties continue to dispute Hilton’s motives for denying Kumar the promotion. Kumar states that he had strong performance evaluations until this date, with only reprimands that he was not following his supervisor’s directions. Pl.’s Resp., Exs. 4-7. Kumar states that, soon after Wakefield commented that Kumar’s alienage was an impediment to his promotion, Gustafson refused to sign Kumar’s application for the position, as required by Hilton policy. Pl.’s Resp., Ex. 1, at 147-148. Kumar states that he had not been given any written warning or performance reprimand at that time. Id.; Pl.’s Resp., Ex. 1, at 150-51. Kumar states that Gustafson was angry with his request and told him to “keep quiet.” Pl.’s Resp., Ex. 1, at 147-48. Instead of obeying Gustafson’s command, Kumar states that he approached Edith Hunter in the human relations department to inform her of Gustafson’s refusal to sign his application for the promotion. Pl.’s Resp., Ex. 1, at 149. Neither Gustafson nor Hunter recalls whether they contacted each other to discuss Kumar’s interest in the promotion, although Hunter did encourage Kumar to persist in his application and to continue to attempt to get Gustafson’s approval to apply. Id. Kumar again requested that Gustafson sign his application on February 23, 2007 at a meeting with both Gustafson and Wakefield. Pl.’s Resp., Ex 1, at 150-51. Gustafson informed Kumar that he needed to sign another document instead, and he then handed Kumar his first written warning. Id. Accordingly, Kumar contends that “[i]t is all so convenient” because now “he cannot be promoted to the Director of Website Development position because [he] is now the subject of a written warning!” Pl.’s Resp. at 15.

On the contrary, Hilton continues to assert that Kumar’s performance was the motivating factor for the denial of the promotion. Hilton argues that it hired Kumar despite his non-citizen alienage, that it attempted to secure him a work visa at the company’s expense, Def.’s Mot. for Summ. J., Ex 1, at 56-57, that it allowed Kumar to advance and relied upon Kumar while his performance was satisfactory, Id., Ex. 2, and that, even though Wakefield briefly expressed concerns over Kumar’s alienage with respect to his promotion, that Hilton did not base its ultimate decision not to promote Kumar on his citizenship whatsoever.

In light of the evidence presented by both Kumar and Hilton as to whether the employer would have taken the adverse employment action even had it not been motivated by discrimination, the Court finds that a genuine issue of material fact exists as to this prong of the direct-evidence test. Specifically, Kumar has offered evidence that his supervisor expressly stated that his alienage would be an impediment to a promotion, but Hilton responds that it realized that his non-citizenship would not be an impediment but that his job performance was the reasoning for the denial of promotion.

Accordingly, the Court finds that judgment as a matter of law is not appropriate, and Hilton’s Motion for Summary Judgment as to Kumar’s Section 1981 claim of discrimination on the basis of alienage is DENIED.

C. THRA Discrimination

Next, the Court must determine whether a genuine issue of material fact exists as to Kumar’s claim of discrimination under the Tennessee Human Rights Act. In Phillips v. Interstate Hotels Corp., 974 S.W.2d 680 (Tenn. 1998), the Tennessee Supreme Court held that the THRA was intended to be coextensive with federal law, as the THRA’s stated purpose was to “provide for execution of the policies embodied in the Federal Civil Rights Acts.” Id. at 683-84 (citing Tenn. Code Ann. § 4-21-101(a)(1)). Thus, the Tennessee Supreme Court stated that courts should “look to federal interpretation of Title VII for guidance in enforcing our own anti-discrimination statute.” Id.

Additionally, in Wade v. Knoxville Utilities Bd., 259 F.3d 452 (6th Cir. 2001), the court acknowledged that THRA claims are analyzed in an identical manner to Title VII discrimination claims. Id. at 464; see also Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir. 1992); Raines v. Shoney’s, Inc., 909 F. Supp. 1070 (E.D. Tenn. 1995); Bruce v. W. Auto Supply Co., 669 S.W.2d 95 (Tenn. Ct. App. 1984). Thus, the Wade court concluded that the “the analysis and conclusions concerning the Title VII claims discussed above apply equally to the parallel claims brought under the THRA and [Section] 1981.” Wade, 259 F.3d at 464.

As in Wade, this Court has determined that a genuine issue of material fact exists as to Kumar’s claims pursuant to Title VII and Section 1981. Accordingly, the Court finds that for the reasons stated herein, judgment as a matter of law is not proper on Kumar’s THRA claim, and Hilton’s Motion for Summary Judgment as to Kumar’s THRA claim of discrimination is DENIED.

D. Retaliation– Section 1981 and THRA

Finally, the Court must determine whether a genuine issue of material fact exists as to Kumar’s claim of retaliation under Section 1981 or the THRA. As noted in Johnson, the analysis of a claim of retaliation is identical under these provision. See Johnson, 215 F.3d at 573 n.5. Under both statutes, a plaintiff must satisfy a four-prong test as to each discreet act of alleged retaliation in order to establish a prima facie case of retaliation:  (1) that the plaintiff engaged in protected activity; (2) that the defendant knew of the plaintiff’s protected conduct; (3) that the plaintiff suffered an adverse employment action; and (4) that a causal connection existed between the protected activity and the adverse action. See Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th Cir. 2000).

Once a prima facie case of retaliation is established, “the burden shifts to the defendant to establish a legitimate, nondiscriminatory reason for the adverse employment action.” Id. However, the plaintiff “bears the ultimate burden of proving that the proffered reason for the action was merely a pretext for discrimination.” Id.; see also Canitia v. Yellow Freight Sys., Inc., 903 F.2d 1064, 1066 (6th Cir. 1990). To establish pretext, “the plaintiff is ‘required to show by a preponderance of the evidence either (1) that the proffered reasons had no basis in fact, (2) that the proffered reasons did
not actually motivate the discharge, or (3) that [the proffered reasons] were insufficient to motivate discharge.’”

Manzer v. Diamond Shamrock Chems. Co., 29 F.3d 1078, 1083 (6th Cir. 1994).

With respect to the prima facie case of retaliation, the parties essentially disagree as to whether a causal connection exists between the protected activity and the adverse employment action. Hilton asserts that Kumar did not engage in any protected activity until August 30 or 31, 2007, when his attorney notified the company of his allegations of discrimination. Def.’s Mot. for Summ. J, Ex. 1, at 260-61. Hilton states that this contact occurred after it had decided to terminate Kumar’s employment in August 2007 and after the notice of termination was prepared on August 29, 2007. Def.’s Mot. for Summ. J., Ex. 11 at 106-173; Ex. 18, at 83-84. However, Hilton admits that it did not actually terminate Kumar as initially planned in August because it received the letter from his attorney. Def.’s Mot. for Summ. J., Ex. 18, at 114-15. Instead, Hilton continued to counsel Kumar about improving his job performance, especially as related to communication, time management, insubordination, and other behavioral issues. Def.’s Mot. for Summ. J., Ex. 18 at 117; Ex. 19; Ex. 20. Hilton states that, despite its final efforts to counsel Kumar, it eventually terminated his employment on December 7, 2007. Def.’s Mot. for Summ. J., Ex. 22.

Kumar responds that a causal connection exists because he engaged in numerous protected activities in advance of the August 29, 2007 draft termination notice and the December 7, 2007 termination. Specifically, Kumar asserts that the following acts constitute protected activities for the purpose of retaliation under Section 1981 and the THRA: (1) contacting his supervisor on January 10, 2007 to inform her that he no longer needed Hilton’s support for his permanent residency application, Pl.’s Resp, Ex. 32; (2) emailing management on February 19, 2007 regarding his application for the promotion, Id., Ex. 12; (3) discussing his interest in the promotion with the human resources department, Id., Ex. 1 at 149; (4) discussing his second written warning with a human resources employee on May 21, 2007, Id., Ex. 37; (5) meeting with another human resources supervisor to discuss the second written warning, Id., Ex. 1 at 197-99; Ex. 38 at 36; (6) emailing a human resources supervisor in August, 2007 informally complaining of retaliation and discrimination in the decision to deny him the opportunity to seek the promotion, Id., Ex. 39; and (7) contacting Hilton via his attorney concerning his potential legal claims, Def.’s Mot. for Summ. J., Ex. 11 at 160-73; Ex. 18 at 83-84.

Upon review, the Court finds that the parties have not materially disputed the first three requirements of the prima facie case. First, the parties agree that, at the latest, Kumar engaged in protected activity by having his attorney contact Hilton regarding his grievances. Next, the parties agree that, at some point, Hilton was aware of at least this instance of protected activity because it admits receiving the letter from his attorney in August 2007. Third, the parties agree that Kumar suffered at least some adverse employment action, namely that his job was terminated. Thus, the Court will focus its inquiry into the final requirement for the prima facie case, which is whether a genuine issue of material fact exists as to a causal connection between the protected activity and the adverse employment action.

As to the causation element, the Court notes that the parties agree that Kumar engaged in protected conduct on or about August 30 or 31, 2007, when his attorney contacted Hilton regarding his employment-related concerns. While Hilton argues that it had already determined to terminate
Kumar’s employment before it received this letter from Kumar’s counsel, the Court notes that Hilton had not actually terminated Kumar in advance of the protected activity. Instead, Hilton did not terminate Kumar’s employment until December 7, 2007–over two months after Kumar engaged in protected activity. Thus, the Court finds that genuine issues of material fact exist as to whether Kumar was terminated as a result of the protected activity, and such issues must be resolved by the trier of fact. Accordingly, judgment as a matter of law is not proper in the instant case, and Hilton’s Motion for Summary Judgment as to retaliation under Section 1981 and THRA is DENIED.

IV. CONCLUSION

For the reasons set forth herein, Defendant Hilton Hotels Corporation’s Motion for Summary Judgment is DENIED.

IT IS SO ORDERED this 5th day of January, 2010.

BERNICE BOUIE DONALD
UNITED STATES DISTRICT JUDGE
 

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¹ Although Kumar’s response does not address the issue of direct discrimination, the Court will consider this issue as raised by Hilton due to the specific references by Hilton supervisors about Kumar’s national origin.

² Hilton’s Motion for Summary Judgment and Reply to Kumar’s Response do not address whether direct evidence exists of discrimination on the basis of alienage. However, Hilton’s Motion for Summary Judgment does address the impact of Plaintiff’s citizenship status on his promotion in discussing whether Kumar has met the prima facie case required to establish a circumstantial case of alienage discrimination. See Def.’s Mot. for Summ. J. at 22. Accordingly, the Court will rely upon Hilton’s factual explanation in its analysis of the direct-evidence test.