State of north carolina

McDonnell Douglas, 411 U.S. at 802.
9. Once Petitioner has established the essential elements of a discrimination claim under the burden-shifting framework, the burden shifts to the Respondent to show that the adverse action was taken for a legitimate nondiscriminatory reason. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981). Where the defendant has met its burden to produce evidence of a legitimate nondiscriminatory reason for the employment action, the plaintiff must then be afforded the opportunity to show that the reasons offered by the defendant were not its true reasons but were, instead, a pretext for discrimination. Id., at 253.

10. 
    A Petitioner may show that the defendant’s proffered explanation for the employment action is “unworthy of credence.” Id., at 256. A trier of fact may determine that the employer’s explanation is a pretext for discrimination by inferring from the evidence presented by the employer that the employer’s explanation is disingenuous. Reeves v. Sanderson Plumbing Products, Inc. 530 U.S. 133, 147-148 (2000).
    

11. 
    Circumstantial evidence of discrimination can be as probative, and in some cases more probative, of discrimination than direct evidence, and, is sufficient to create a genuine issue of material fact. Desert Palace, Inc. v. Costa, 539 U.S. 90, 123 (2003). In Desert Palace, the Supreme Court stated,
    

The reason for treating circumstantial and direct evidence alike is both clear and deep-rooted: ‘Circumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence.’

539 U.S. at 100, quoting Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 508, n. 17.

11. 
    Our courts have recognized that direct evidence of discrimination is rarely available because sophisticated employers generally will conceal their true motivations for taking the adverse employment action at issue. See Kolstad v. Am. Dental Assoc., 527 U.S. 526, 551, 199 S.Ct. 2118, 2132 (1999); Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 464 (2d. Cir. 1989); Dister v. Continental Group, Inc., 859 F.2d 1108, 1112 (2d Dir. 1998), Rothmeier v. Inv. Advisers, Inc., 85 F.3d 1328, 1332 (8th Cir. 1996). In Hopson v. Daimlerchrysler Corp., 306 F.3d 427, 436 (6th Cir. 2002), the Court wrote:
    

We recognize that 'Title VII does not diminish lawful traditional management prerogatives in choosing among qualified candidates.' We also recognize, however, that: discrimination victims often come to the legal process without witnesses and with little direct evidence indicating the precise nature of the wrongs they have suffered. . . . Cases charging discrimination are uniquely difficult to prove and often depend upon circumstantial evidence. . . .An employer who knowingly discriminates . . . may leave no written records revealing the forbidden motive and may communicate it orally to no one. . . .

11. 
    In Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000), the Supreme Court held that “a plaintiff’s prima facie case, combined with sufficient evidence to find that the employer’s asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.” Id. at 148. “It is permissible to infer the ultimate fact of discrimination from the falsity of the employer’s explanation.” Id. at 147.
    

11. 
    A double standard can be evidence of pretext. In the McDonnell Douglas case, the Court reviewed the employer’s proffered reasons and noted that:
    

[e]specially relevant to such a showing would be evidence that white employees involved in acts against [the employer] of comparable seriousness to the ‘stall-in’ were nevertheless retained or rehired. [The employer] may justifiably refuse to rehire one who was engaged in unlawful, disruptive acts against it, but only if this criterion is applied alike to members of all races.

(Emphasis supplied). McDonnell Douglas Corp. v. Green, supra, 411 U.S. at 804.

11. 
    The consistency of an employer’s explanations for its actions is also evidence of pretext. See, Zaccagini v. Chas Levy Circulating Co., 338 F.3d 672, 677 (7th Cir. 2003) (the consistency of the explanation provided by an employer at the time of an employment decision and in an administrative proceeding is evidence of the veracity of the employer’s explanation); Dominguez-Cruz v. Suttle Carible, Inc., 202 F.3d 424, 432 (1^st Cir. 2000) (“When a company at different times offers different and arguably inconsistent explanations, a jury may infer that the articulated reasons are pretextual.”)
    

11. 
    In this case, Respondent suspended Petitioner from work for one week without pay for unsatisfactory job performance. Respondent contended that it suspended Petitioner, because Petitioner did not keep the work order backlog in the Electrical shop below fifty at a sustained level. However, the preponderance of the evidence showed that Petitioner made every effort to comply with his supervisor’s request. The backlog of work orders was also due to Electrical shop having more corrective work orders than other shops, and thus, a disproportionate amount of the workload. Once the Electrical shop was split into two shops, a Maintenance Engineer inspector generated a large increase in the work orders sent to the Electrical shop. Yamada admitted that they did not do a good job, during the reorganization, of estimating the workload for the Electrical shop. A smaller group of employees in the Electrical shop was being asked to respond to both to an increased backlog, and to special events at the university. Both the increased backlog and special events at the university demanded employees work overtime.
    

11. 
    Supervisor Yamada’s explanation for disciplining Petitioner was not worthy of credence. Yamada stated that Petitioner’s claims that the shop was without sufficient resources was unjustified; yet, Yamada made the same claim to his own supervisors on at least two occasions in 2007.
    

11. 
    Supervisor Yamada’s explanation for disciplining Petitioner may also be viewed as pretextual, in that Yamada displayed animus toward Petitioner by applying rules differently to Petitioner compared to other shops.
    

11. 
    Individuals supervised by Yamada who committed serious transgressions, such as stealing fuel from the state, did not receive any disciplinary action that resulted in a loss of pay.
    

11. 
    The fact that a decision maker is a member of a protected class does not give rise to an inference of nondiscrimination. In Castaneda v. Partida, 430 U.S. 482, 499-501 (1977), the Court rejected the assertion “that human beings would not discriminate against their own kind.” In Oncale v. Sundowner Offshore Services, Inc., et al., 523 U.S. 75, 78 (1998), the Supreme Court again dispensed with the argument (in the context of same-sex harassment) as follows:
    

. . . In the related context of racial discrimination in the workplace, we have rejected any conclusive presumption that an employer will not discriminate against members of its own race. ‘Because of the many facets of human motivation, it would be unwise to presume as a matter of law that human beings of one definable group will not discriminate against other members of that group.’ (citation omitted).

523 U. S. Ct. at 78. See also, Ross v. Douglas County, 234 F.3d 391, 396 (8th Cir. 2000) (“We have no doubt that, as a matter of law, a black male could discriminate against another black male, because of that individual’s race”); Wexter v. White’s Furniture, 317 F.3d 564, 572-73 (6^th Cir. 2003) (en banc) (discussing the ‘same actor’ inference and stating that, “although the fact-finder is permitted to draw this inference, it is by no means a mandatory one and may be weakened by other evidence”); Campbell v. Town of Southern Pines, 401 F. Supp. 2d 480 (M.D.N.C. 2005) (declining to apply the “same actor” inference where there was evidence that the Plaintiff was being treated differently because she failed to meet stereotypical expectations).

11. 
    The Second Circuit rejected a similar argument in an age discrimination case called Danzer v. Norden Systems, Inc., 151 F3d 50, 55 (2d Cir. 1998), where the Court stated that "the proposition that people in a protected category cannot discriminate against their fellow class members is patently untenable."
    

11. 
    Under the federal anti-discrimination statutes, a Petitioner may show retaliation by showing that after engaging in protected activity, he suffered an adverse employment action. James v. Booz-Allen & Hamilton, Inc., 368 F.3d 371, 375 (4^th Cir. 1997). The Supreme Court has recently defined “tangible employment action” to include not only "hiring, firing, failing to promote, . . . [and] significant change in benefits," but also "reassignment with significantly different responsibilities." Burlington Industries, Inc., v. Ellerth, 534 U.S. 742 (1998) (discussing "tangible employment action" as trigger for employer's strict liability under Title VII for supervisor's discriminatory acts); see also Reinhold v. Commonwealth of Virginia, 151 F.3d 172, 175 (4^th Cir. 1998). See also, Spears v. Mo. Dep’t of Corr. & Human Res., 210 F.3d 850, 853 (8^th Cir. 2000) (noting that “[a]n adverse employment action is a tangible change in working conditions that produces a material employment disadvantage”).
    

23. "An employee may prove causation with circumstantial evidence that justifies an inference of a retaliatory motive." Pope v. ESA Servs., Inc., 406 F.3d 1001, 1010 (8th Cir. 2005) (internal marks omitted). While temporal proximity alone generally will not suffice to create a genuine issue of fact on a retaliation claim, the timing issue is evaluated along with the other evidence in the record to determine whether the evidence was sufficient to support the conclusion. Tatum v. City of Berkeley, 408 F.3d 543, 555 (8th Cir. 2005); E.E.O.C. v. Kohler, 335 F.3d 766, 773, n.7. "[T]emporal proximity rises in significance the closer the adverse activity occurs to the protected activity." Id. at 774.

24. In this case, Petitioner engaged in a protected activity when he spoke with Respondent’s supervisor Ricky Hill, and presented his complaint that he believed Yamada’s treatment was inconsistent with the Chancellor’s stated goals on valuing diversity, i.e. treating employees equally regardless of their community.
25. Within a week after Petitioner participated in this protected activity, Respondent disciplined Petitioner by taking the adverse employment action of suspending Petitioner for two weeks.
26. A preponderance of the evidence showed that Respondent, through its employee Mr. Yamada, unlawfully discriminated against Petitioner based on Petitioner’s national origin, in violation of N.C. Gen. Stat. §126-16, 126-17, and § 126-34.1 by treating Petitioner differently in the terms, conditions, and privileges of employment as compared with similarly situated employees who were not Hindu Indian, and by suspending Petitioner from employment for one week without pay.

27. 
    A preponderance of the evidence established that Respondent, through its employee Mr. Yamada, retaliated against Petitioner for engaging in protected activity covered under N.C. Gen. Stat. § 126-16 and 126-17 by suspending Petitioner from employment for one week without pay.
    

27. 
    N.C. Gen. Stat. §126-35 states, “no career employee may be discharged, suspended, or demoted for disciplinary reasons except for just cause.”
    

27. 
    “Just cause” is not defined in the statute, but includes “unacceptable personal conduct” or “unsatisfactory job performance.” North Carolina Dep’t of Correction v. McNeely, 135 N.C. App. 587, 521 S.E.2d 730 (1999).
    

27. 
    25 NCAC 1J .0614(j) defines “unsatisfactory job performance” as:
    

work-related performance that fails to satisfactorily meet job requirements as specified in the relevant job description, work plan, or as directed by the management of the work unit or agency.

27. 
    Respondent has the burden of proving that it had just cause to suspend Petitioner from employment. N.C. Gen. Stat. § 126-35(d).
    

27. 
    The preponderance of the evidence established that Petitioner and his employees made progress toward, and periodically met, his Supervisor’s goal of reducing work orders below fifty. A preponderance of the evidence proved that Supervisor Yamada’s requirement, that work orders be reduced below fifty by requiring employees to work more overtime than they were already required to work, was an unreasonable requirement given, (1) the number of employees in the Electrical shop, (2) the volume of the work in the Electrical shop, and (3) the university’s requirement that employees be compensated for overtime work with compensatory time rather than salary.
    

33. A preponderance of the evidence showed that Supervisor Yamada’s criticisms, that Petitioner was not completing other work in a timely manner, were pretextual. Most of the conditions causing delays in work completion were out of the Petitioner’s control, including those circumstances where Yamada himself created delay.

34. Based on the foregoing, Respondent suspended Petitioner without just cause in violation of N.C. Gen. Stat. § 126-36.
35. As the prevailing party under N.C. Gen. Stat. §126, Petitioner is entitled to recoup lost wages due to his suspension, attorneys’ fees, and legal expenses.