Court lets discrimination suit proceed

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A former associate in Foley & Lardner’s Chicago office will be allowed to proceed to trial on his claims that the firm terminated him after the attacks on Sept. 11, 2001, because of his religion and national origin.

The Seventh Circuit on Dec. 15 reversed a district court’s grant of summary judgment in favor of the firm, holding that a jury could find its stated reasons for termination were pretextual.

According to the decision, Zafar Hasan, a Muslim of Indian descent, joined Foley’s Business Law Department in Chicago in October 2000 as an associate. Partner evaluations stated that he generally exceeded or met the firm’s expectations, although the partners stated he needed to pay more attention to detail, develop more substantive skills, and submit more polished work to supervisors.

Although he was the highest billing associate in the practice group though September 2001, his hours dropped afterwards. His May and September 2002 evaluations were less positive, and in December, he was terminated.

Hasan filed a discrimination suit, but the district court granted summary judgment to Foley. Hasan appealed, and the Seventh Circuit reversed in an opinion by Judge Kenneth F. Ripple.

Attorney Thomas C. Crooks, of Chicago, who represented Hasan said in an interview, “I’m very gratified that the appeals court saw the case the way we did and we’re very much looking forward to trial.”

However, Jim Clark, the general counsel for Foley & Lardner, defended the firm’s actions.

Clark emphasized the procedural posture of the appeal — review of a motion on summary judgment — at which point the court must look at the evidence in the light most favorable to the party opposing judgment.

Clark said, “We have a strong commitment to non-discrimination, and embracing differences. Diversity is one of the core values of our firm, so we are disappointed with the court’s ruling. But we believe that, at the end of the day, the evidence will show there was no discrimination.”

One factor the court cited was a comment by a partner on Sept. 11 that “those people” should be “kicked out.” The same partner attended the meeting at which the partners decided to fire Hasan and participated in that decision.

The second factor was that Hasan’s hours fell after Sept. 11. The court acknowledged that this would not carry much meaning in itself, but concluded it has significance in the context of five other facts: (1) partners’ anti-Muslim comments; (2) their refusal to give him work even when he asked for it; (3) Hasan’s good relationship with the department’s primary client; (4) Hasan’s previous positive performance reviews; and (5) other associates had sufficient work and even increased their hours on average during the relevant period.

The third factor the court noted is that Foley had fired or transferred its other two Muslim associates from its Business Law Department.

The court concluded, “Foley initially claimed that it fired Mr. Hasan for poor performance. … 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.”

The court further found that the alternative explanation of lack of work was pretextual as well, based on internal memos that the firm’s economic performance was strong, and that the firm hired new associates in the business law department after firing Hasan.

“It is possible that the firm lacked work for midlevel associates with Mr. Hasan’s skill set and instead needed attorneys with different experience or training,” Ripple wrote. “A jury could also conclude, however, that the Business Law Department hired new associates because it actually had plenty of work. This issue cannot be resolved at summary judgment.”