In Chandler v. La-Z-Boy, Inc., No. 5:21-cv-05101-JMG, 2022 WL 348169 (E.D.Pa. Feb. 4, 2022), the court granted defendants’ motion to dismiss plaintiff’s discrimination/constructive discharge and hostile work environment claims asserted under 42 U.S.C. § 1981.
Plaintiff alleges, inter alia, that three weeks into her employment, she was called a “colored girl” by her manager, and thereafter objected to the comment and reported the incident to her district supervisor. She also contends that, over the following year, she was “harassed, taunted and singled out on a daily basis”, her white colleagues would whisper “sick” and “lazy” as she walked by, and that this conduct affected plaintiff physically and emotionally and prompted her to resign from her position.
Plaintiff asserted he discrimination claim under the pretext” theory (known as the “McDonnell Douglas framework”, so-named for the Supreme Court decision from which it arose).
The court explained the law as follows:
Under the McDonnell Douglas framework, Chandler must show: “1) membership in a protected class; 2) qualification to hold the position; 3) an adverse employment action under 4) ‘circumstances that could give rise to an inference of discrimination.’ ” Summers, 2021 WL 5789057, at *2 (quoting Makky v. Chertoff, 541 F.3d 205, 214 (3d Cir. 2008)).
At issue here is the third element. “An adverse employment action is an action by an employer that is serious and tangible enough to alter an employee’s compensation, terms, conditions, or privileges of employment.” Henley v. Brandywine Hosp., LLC, No. 18-4520, 2019 WL 3326041, at *9 (E.D. Pa. July 24, 2019) (internal quotation marks and citation omitted). “For example, [t]ermination, failure to promote,[ ] failure to hire[,] … [and] actions that reduce opportunities for promotion or professional growth can constitute adverse employment actions.” Id. (internal quotation marks and citation omitted).
A constructive discharge can also amount to an adverse employment action. See Embrico v. U.S. Steel Corp., 245 F. App’x 184, 187 (3d Cir. 2007) (citing Hill v. Borough of Kutztown, 455 F.3d 225, 247 n.32 (3d Cir. 2006)). “Constructive discharge occurs when an employer knowingly permit[s] conditions of discrimination in employment so intolerable that a reasonable person subject to them would resign.” Id. (quoting Spencer v. Wal-Mart Stores, Inc., 469 F.3d 311, 317 n.4 (3d Cir. 2006)). The Third Circuit has prescribed several factors that are probative of a constructive discharge: “(1) threat of discharge; (2) suggesting or encouraging resignation; (3) a demotion or reduction of pay or benefits; (4) involuntary transfer to a less desirable position; (5) alteration of job responsibilities; and (6) unsatisfactory job evaluations.” Lebofsky v. City of Phila., 394 F. App’x 935, 939 (3d Cir. 2010) (citing Clowes v. Allegheny Valley Hosp., 991 F.2d 1159, 1161 (3d Cir. 1993)).
Applying the law, the court held that even accepting plaintiff’s allegations as true, and drawing all reasonable inferences in her favor, she fails to allege conditions of discrimination “so intolerable that a reasonable person subject to them would resign.”
It elaborated :
The lone piece of race-related harassment alleged here is the “colored girl” comment, which occurred only once, over a year before Chandler’s resignation. See Compl. ¶¶ 20, 29. Constructive discharge requires a “greater severity or pervasiveness of harassment than the minimum required to prove a hostile working environment.” Spencer, 469 F.3d at 316 n.4 (quoting Landgraf v. USI Film Prods., 968 F.2d 427, 430 (5th Cir. 1992)). “Isolated incidents and ‘offhanded comments … are not sufficient to sustain a hostile work environment claim,’ ” so they necessarily fail to establish constructive discharge, too. Stucke v. City of Phila., 685 F. App’x 150, 153 (3d Cir. 2017) (quoting Caver v. City of Trenton, 420 F.3d 243, 262 (3d Cir. 2005)). As such, the “colored girl” comment, while clearly offensive, is not the sort of “extremely serious” comment that would otherwise support a constructive discharge claim. Caver, 420 F.3d at 262; see, e.g., Castleberry v. STI Grp., 863 F.3d 259, 265 (3d Cir. 2017) (reversing dismissal of employment discrimination claim where plaintiffs “alleged that their supervisor used a racially charged slur in front of them and their non-African-American coworkers … accompanied by threats of termination”); Hoff v. Spring House Tavern, No. 13-0662, 2013 WL 2434615, at *5 (E.D. Pa. June 5, 2013) (“Plaintiff was not constructively discharged when his supervisor failed to terminate a co-worker who had made one inappropriate racial comment.”). Chandler’s discrimination claim fails.
The court also held that plaintiff failed to sufficiently allege a hostile work environment claim, reasoning that the “colored girl” comment – while “undoubtedly offensive” – was insufficient, since “the fact that Plaintiff encountered an unpleasant isolated incident does not mean that the terms and conditions of Plaintiff’s employment were altered.”
The taunts from plaintiff’s colleagues likewise failed to support this claim, since “those taunts, on their face, were not racially based, and there are no facts alleged that otherwise suggest that they were racially motivated.”