Discrimination, Hostile Work Environment Claims (Based on Behind-the-Back Comments) Sufficiently Alleged, Court Holds

Recently, the Second Circuit, in Legrand v. Walmart Stores East, LP, 2019 WL 3026881 (2d Cir. July 11, 2019) (Summary Order) held, inter alia, that one plaintiff sufficiently alleged discrimination, hostile work environment, and retaliation claims under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, 42 U.S.C. § 1981, and the New York State Human Rights Law.

The court summarized the complaint’s allegations:

LeGrand is a Black-Cuban-American woman with developmental delay, asthma, and fibromyalgia who worked at a Walmart store in Middle Island, New York, from February 2013 to August 2014. Mims is LeGrand’s mother and a patron of Walmart stores. LeGrand’s supervisor, Karen Alles, and Alles’s supervisor, General Manager Eileen Matranga (both defendants), referred to LeGrand and her mother using racial epithets on “several occasions” in conversations with other co-workers between February 2013 and August 2014. J. App’x 11. Mims and LeGrand do not allege hearing Defendants using that language first hand. They allege learning of it from LeGrand’s co-workers.

After learning of the racist comments, LeGrand and Mims called Walmart’s corporate office to complain, and Mims complained to Matranga. The abusive and discriminatory conduct thereafter escalated and included a comment by Alles to other Walmart employees that Mims is not LeGrand’s true mother. Plaintiffs called Walmart’s corporate offices to complain about Alles’s comment and reported the comment to Matranga. After these complaints, Alles told other Walmart employees that LeGrand had had a miscarriage.

LeGrand unsuccessfully requested transfer to another Walmart store. When, in August 2014, LeGrand asked to take Fridays and Saturdays off to attend school, Matranga told LeGrand that her hours could not be changed and “that she would have to either quit school or quit her job.” Id. at 15. Alles explained to another employee that Alles “was not doing anything for [LeGrand] because her mother almost made me lose my job.” Id. Plaintiffs again called Walmart’s corporate office to complain. Alles then disclosed information about LeGrand’s disability to co-workers, called Plaintiffs “retarded,” and retaliated by falsely accusing LeGrand of misconduct. Id. at 16. Alles also admitted to a co-worker that she was retaliating against LeGrand because of her complaint to Walmart’s corporate office. LeGrand eventually quit “[a]s a result of this abuse and hostile work environment”—and to attend school.

After affirming the dismissal of Mims’ claims – noting, inter alia, that plaintiffs concede that she lacks standing to bring employment discrimination claims and that she did not allege sufficient retaliatory action – the court turned to LeGrand’s claims.

As to her discrimination and hostile work environment claims, the court explained:

Many of LeGrand’s allegations … are sufficient to support a prima facie case. LeGrand’s employment discrimination claim pursuant to Title VII, the ADA, § 1981, and the NYSHRL is plausible. To state a claim under Title VII, a plaintiff must plausibly allege that (1) the employer took adverse action against her, and (2) her race, color, religion, sex, or national origin was a motivating factor in the employment decision. See Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 87 (2d Cir. 2015). LeGrand’s other employment discrimination claims are analyzed using the same standard. See Tolbert v. Smith, 790 F.3d 427, 434 (2d Cir. 2015). The adverse action element is satisfied by LeGrand’s allegation of constructive discharge: Defendants’ racist comments, harassment, and refusals to accommodate her transfer and scheduling requests when similar requests were “approved without any issues or the same level of scrutiny,” J. App’x 15, are enough to make LeGrand’s working conditions “so difficult or unpleasant that a reasonable person in [her] shoes would have felt compelled to resign.” Chertkova v. Connecticut Gen. Life Ins. Co., 92 F.3d 81, 89 (2d Cir. 1996) (quoting Lopez v. S.B. Thomas, Inc., 831 F.2d 1184, 1188 (2d Cir. 1987)). The nature of the comments supports an inference of discriminatory motive.

For many of the same reasons, LeGrand plausibly alleges a hostile work environment under the same statutes. To state a hostile work environment claim, a plaintiff must allege that the complained of conduct (1) is objectively severe or pervasive in that it creates an environment that a reasonable person would find hostile or abusive; (2) creates an environment that the plaintiff subjectively perceives as hostile or abusive; and (3) creates such an environment because of the plaintiff’s protected characteristic. See Patane v. Clark, 508 F.3d 106, 113 (2d Cir. 2007) (per curiam); Rivera v. Rochester Genesee Reg’l Transp. Auth., 743 F.3d 11, 20 n.4 (2d Cir. 2014). Comments allegedly made by Alles and Matranga to LeGrand’s co-workers satisfy each of these elements, even if they were not made in LeGrand’s presence: reasonable people would find an environment to be hostile if supervisors make racist comments about them behind their backs.

In finding that plaintiff’s retaliation claim was sufficiently alleged, the court explained:

LeGrand (and her mother) lodged several complaints with Walmart’s corporate headquarters about the unlawful treatment alleged in the complaint. LeGrand alleges that the hostile conduct directed against her escalated after the first two complaints and that, around the time LeGrand’s scheduling and transfer requests were denied, Alles told a co-worker she was retaliating against LeGrand because of these complaints. These facts are all that is required to raise inference of retaliatory conduct sufficient to withstand a motion to dismiss.

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