Seventh Circuit Rejects National Origin Discrimination Claim

Plaintiff Cung Hnin is of Chin ethnicity from the country of Myanmar. He began working for defendant TOA (USA) LLC on the production floor in 2007 at TOA’s automobile metal stamping plant . A female co-worker, Brock, reported to management that Hnin was making comments and gestures suggesting she was having a sexual relationship with a male co-worker. Although not acknowledged in the court’s opinion, the harassment was probably not severe or pervasive enough to give rise to a claim for unlawful sexual harassment. Nevertheless, whenever a co-worker complains about harassment on the basis of sex, the employer has a legal obligation to investigate and take prompt remedial action. Many companies faced with such complaints deal with it by terminating the offending employee. Such was the the case here. The company investigated by interviewing witnesses who supported her report. The company also interviewed Hnin. He denied the allegations. The company terminated his employment on the spot during the interview, perhaps because he raised his voice and became angry, which corroborated reports of other witnesses that he was a bully.

Hnin sued the company for national origin discrimination. His claim failed because he had no evidence that similarly-situated American born employees had been treated more favorably than he was. All but one of these comparators had not been accused of sex harassment. The remaining comparator was terminated one day after his interview, which did not logically equate to more favorable treatment than Hnin, who was terminated during his interview.

The employee accused of sexual harassment often faces the cruel reality that if terminated there is little that can be done to reverse the decision. It should have been apparent to Hnin’s lawyer that rather than litigating through the summary judgment stage the best course of action was to negotiate improvement to Hnin’s personnel file, such as treatment of his separation from employment as a resignation, agreement to a neutral (or positive) reference when prospective employers made contact, a non-disparagement provision, and then perhaps a severance payment. This outcome is far better than litigating a weak case and seeing it dismissed on summary judgment.

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