Arab Waiter Can Take Lawsuit Forward

A Denny's Restaurant server who claims he was discriminated against at work and fired because he is a Palestinian Arab is entitled to his day in court, a federal judge in Greenbelt has decided. Karam Elries, who worked at the Denny's on Quince Orchard Road in Gaithersburg from September 1997 until August 1998, filed a Title VII action against his former employer in February 2000.

U.S. District Judge Deborah K. Chasanow last week rejected Denny's motion for judgment against Elries, who alleges he was forced to take his breaks in the trash area, clean up after non-Arab servers, forfeit his tips to managers, and generally put up with worse working conditions than American-born employees because of his race.

Afshin Pishever, who represents Elries, said he thought Chasanow's opinion speaks for itself. "Justice is the most important commodity we have here in America," Pishevar said. "It's not a fair-weather friend. It defends aliens as well as citizens, non-whites as well as whites, in times o peace and in times of trouble, such as we have now."

Chasanow noted that while Denny's was able to produce records "show[ing] numerous occasions where [Elries] received a written reprimand from management regarding his behavior," Elries' "presented enough evidence to raise a question of fact as to whether [Denny's] reasons are pretextual" to mask Denny's discriminatory intent. She further noted that Elries presented direct evidence of discriminatory intent. "An affidavit by Delwin Cosia states that a manager told him, in reference to Elries, that she intended to OGet rid of all the Arabs.' Although the date of this alleged statement is not provided, Elries survived at Denny's less than a year," the judge wrote.

"His termination, by definition, could not have been long after this statement was made. These two events, in close proximity, are direct evidence of [Denny's] discriminatory intent," Chasanow added.

The judge also found sufficient grounds to sustain Elries hostile workplace claims.

"Undoubtedly, being relegated to the trash area for break times, receiving a constantly changing work schedule, and witnessing preferential treatment ot American born employees in work assignments, cleaning responsibilities, holiday requests and disciplin matters are all factors to be weighed and considered by a fact finder to determine the severity or pervasiveness of the hostility in the work environment," Chasanow wrote in her opinion issued last week.

In addition, Elries' claim that he was fired in retaliation for protesting to his superiors for the disrespect and discrimination he felt from co-workers and managers also survived the defense motion for summary judgment. Pishevar said his client, in his late 20's and not a U.S. citizen, is currently waiting tables in another restaurant.

Sidney G. Leech, the lawyer representing Denny's declined to comment on the merits of the case. "We're scheduled to meet with Judge Chasanow in about two weeks to go to the next step," Leech said. "She'll be assigning a pretrial conference and a trial date at that time.

Case: Elries v Denny's Restaurant et al., USDMD No. DKSC-00-33. Memorandum opinion by Chasanow, J. Filed Jan. 10, 2002.

Issue: Were there sufficient issues of material fact for a plaintiff's abusive discharge dna common law claims as well as his Title VII claims of harassment, disparate treatment and retaliatory discharge to survive a defense motion for summary judgment?

Holding: Yes. Although the plaintiff withdrew and the court dismissed his abusive discharge and common law claims, he raised genuine issues of material fact as to the Title VII claims of harassment, disparate treatment and retaliatory discharge.

Counsel: Afshin Pishevar for plaintiff; Sidney G. Leech for defendant.