Guessous v. Fairview Prop. Invs., LLC

Citation828 F.3d 208
Decision Date06 July 2016
Docket NumberNo. 15–1055,15–1055
PartiesMonica Guessous, Plaintiff–Appellant, v. Fairview Property Investments, LLC, Defendant–Appellee. Equal Employment Opportunity Commission, Amicus Supporting Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

828 F.3d 208

Monica Guessous, Plaintiff–Appellant
v.
Fairview Property Investments, LLC, Defendant–Appellee.


Equal Employment Opportunity Commission, Amicus Supporting Appellant.

No. 15–1055

United States Court of Appeals, Fourth Circuit.

Argued: December 9, 2015
Decided: July 6, 2016


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 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.

Before TRAXLER, Chief Judge, and GREGORY and DIAZ, Circuit Judges.

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

GREGORY, Circuit Judge:

On February 28, 2014, Monica Guessous filed suit against Fairview Property Investments, LLC (“Fairview”). She alleged six claims in her complaint: pursuant to 42 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 environment (“Count V”), and retaliation (“Count VI”). On December 16, 2014, the district court granted summary judgment for Fairview on all six counts. For the reasons that follow, we vacate the order granting summary judgment on all counts and remand for further proceedings.

I.

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

828 F.3d 211

Guessous. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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 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 four-and-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. For example, in January 2010, after reading news reports about Islamic terrorism, Washenko came out of his office and walked to Guessous' desk to ask her, “Why do Muslims hate America?” J.A. 216. Guessous replied that she was Muslim and did not hate America. She further stated that “Muslims are not terrorists,” to which Washenko responded, “Yeah, sure. Like my buddy says ... not all Muslims are terrorists, but most are.” J.A. 216. 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, Washenko again left his office to approach Guessous. When he said, “I need your intake on this,” Guessous believed he was bringing her something to work on. Instead, Washenko proceeded to tell her, “I could never understand this whole suicide bomber thing.... These poor Israelis are being bombed every day by Muslim Palestinian terrorists.” J.A. 217. Guessous attempted to 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 business speaking about” the issue. J.A. 217. On yet another occasion, in February 2011 during the Arab 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

828 F.3d 212

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. She was then asked to act as a translator for one of the restaurant's employees who was a Farsi-speaking Persian Iranian. When Guessous told Washenko that she did not speak Farsi, he replied, “ ‘So you don't speak Iranian? Shouldn't there be some secret [ ] language that you all understand?’ ” Guessous v. Fairview Prop. Investments, LLC , No. 1:14–CV–00224–GBLIDD, 2014 WL 7238993, at *5 (E.D. Va. Dec. 16, 2014).4

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. Around this time, Guessous sent an email to her 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. Much of Washenko's conduct was more personal in nature. For example, beginning in early 2010, Washenko spent several months referring to Guessous by her Moroccan name, “Mounia,” instead of her chosen Americanized name, “Monica.” Guessous , 2014 WL 7238993, at *3. While Fairview asserts that Washenko desisted at Guessous' request, Guessous herself stated in the same 2011 email to her brother-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 2–3 months of repeated requests and protests,” J.A. 16. In September of that same year, Guessous wished Washenko a happy birthday, which happens to fall on September 11th. 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. J.A. 235.

Another of their conversations in 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. Guessous then began to explain that Judaism, Christianity, and Islam are all Abrahamic religions, that their adherents worship the same God, and that Islam

828 F.3d 213

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 storm[ing] away.” Guessous , 2014 WL 7238993, at *3. Guessous was hurt by the reaction, recalling in testimony 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. In the fall of 2011, Washenko was shopping for a new car for his son. Guessous suggested he purchase a Volkswagen because her mother drove one and it had...

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