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Poor Performance Defeats Title VII Claim

Ammar Alkhawaldeh worked as a scientist for Dow Chemical Company. Less than a year after his hire, his supervisor rated him a 1 out of 5 on his year-end review. He was placed on a performance improvement plan (“PIP”). Mr. Alkhawaldeh vigorously objected to his low rating but was unable to persuade his supervisor to change it. A month later, he complained to HR that this supervisor as well as others had made offensive comments to him based on his Arab descent, his dark skin, and his national origin of Jordan. Mr. Alkhawaldeh also complained that he was retaliated against after protesting the discriminatory comments by being placed on a PIP. He also filed an EEOC charge and emailed the Chairman of Dow about the retaliation.

Following these complaints, Dow moved Mr. Alkhawaldeh to a new group with a new supervisor. The new supervisor spent two months observing Mr. Alkhawaldeh’s performance and found it to be unimpressive. A committee was convened in accordance with Dow’s policy. The committee found him to be insubordinate, lacking in concentration and innovation, and unable to handle the basic mathematical and engineering skills essential to his job. He was fired.

The Fifth Circuit Court of Appeals affirmed a trial court decision that ruled in favor of Dow on Mr. Alkhawaldeh’s discrimination and retaliation claims. Mr. Alkhawaldeh failed to show that he was treated less favorably than someone outside of his protected class, an essential element of a circumstantial discrimination complaint. He could not point to even one co-worker that had received a low rating and completed a PIP who was not fired. His low rating came one month before his internal complaint to HR thus rebutting any retaliation claim. The negative post-transfer review by a new supervisor justified his termination by Dow.