Single Racial Slur Insufficient to Establish Hostile Work Environment or Constructive Discharge, Second Circuit Holds

In Black v. Buffalo Meat Service, Inc., d/b/a Boulevard Black Angus, 21-1468, 2022 WL 2902693 (C.A.2 July 22, 2022), the court affirmed the lower court’s award of summary judgment dismissing plaintiff’s race-based hostile work environment and constructive discharge claims.

From the decision:

Next, even assuming Black has standing to pursue her constructive discharge claims, we conclude that they fail because she has not shown that her working conditions were objectively intolerable or that Defendants intended to force her to resign by creating an intolerable work environment. “Constructive discharge of an employee occurs when an employer, rather than directly discharging an individual, intentionally creates an intolerable work atmosphere that forces an employee to quit involuntarily.” Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 89 (2d Cir. 1996). To prove a constructive discharge claim, a plaintiff must satisfy two requirements. First, the plaintiff must “show[ ] that a reasonable person would have found the work conditions so intolerable that he would have felt compelled to resign.” Shultz v. Congregation Shearith Israel, 867 F.3d 298, 308 (2d Cir. 2017); see also Pa. State Police v. Suders, 542 U.S. 129, 141 (2004) (holding that this inquiry is “objective”). Second, the employee must produce “evidence of the employer’s intent to create an intolerable environment that forces the employee to resign.” Shultz, 867 F.3d at 308; see also Petrosino v. Bell Atl., 385 F.3d 210, 230 (2d Cir. 2004) (noting that an employee must “at least demonstrate that the employer’s actions were deliberate and not merely negligent or ineffective”). The standard for a constructive discharge claim “is higher than the standard for establishing a hostile work environment.”

Black has not adduced evidence that meets “the high standard to establish that she was constructively discharged.” Shultz, 867 F.3d at 308. Her central argument is that her work conditions became objectively intolerable when Jamie LaPress, a co-worker, used a racial slur in referring to her children. In general, “[f]or racist comments, slurs, and jokes to constitute a hostile work environment, there must be more than a few isolated incidents of racial enmity, meaning that instead of sporadic racial slurs, there must be a steady barrage of opprobrious racial comments. Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997). We have never held that the onetime use of a racial slur by a supervisor to a subordinate “by itself, support[s] a claim for a hostile work environment.” Daniel v. T & M Prot. Res., LLC, 689 F. App’x 1, 2 (2d Cir. 2017) (summary order) (“declin[ing] to confront th[is] issue”); see also Albert-Roberts v. GGG Constr., LLC, 542 F. App’x 62, 64 (2d Cir. 2013) (summary order); Miller v. N.Y. State Police, No. 20-3976, 2022 U.S. App. LEXIS 10354, at *4–6 (2d Cir. Apr. 18, 2022) (summary order). In any event, we need not reach that question because LaPress was Black’s coworker, not her supervisor. See Rivera v. Rochester Genesee Reg’l Transp. Auth., 743 F.3d 11, 24 (2d Cir. 2014) (stating that “perhaps no single act can more quickly alter the conditions of employment … than the use of an unambiguously racial epithet … by a supervisor in the presence of his subordinates”); see also Negron v. Rexam Inc., 104 F. App’x 768, 770 (2d Cir. 2004) (summary order) (affirming summary judgment for defendants where plaintiff presented evidence that “on a handful of occasions his coworker addressed him using a racial epithet, including once over the loudspeaker”). Thus, consistent with the general rule in Schwapp, no reasonable jury could find that this “isolated incident[ ] of racial enmity” created a hostile work environment. 188 F.3d at 110.

Having concluded that plaintiff did not present enough evidence to survive summary judgment on her hostile work environment claim, the court likewise dismissed her constructive discharge claim, since “the standard for a constructive discharge claim is higher than the standard for establishing a hostile work environment,” further noting that plaintiff’s claim that “LaPress slurred her children is insufficient to create a genuine issue of material fact on her constructive discharge claim.”

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