Racial harassment case will proceed to a jury

The evidence in this hostile work environment is quite ugly. While the district court dismissed the case on defendant's motion for summary judgment, the Court of Appeals reinstates the case for trial on the racial harassment. But the constructive discharge claim is dismissed for good.

The case is Byer v. Periodontal Health Specialists, a summary order issued on August 2. Plaintiff worked for a dentist. Prior to her resignation, plaintiff says, her boss made offensive comments and written statements for three years. While plaintiff's Title VII claim is time-barred, her state-law claim is on the table. To win a hostile work environment, you have to show the workplace was severe or pervasive, altering the work environment for the worse. These can be fact-specific inquiries, but sometimes you know a hostile work environment when you see one. That seems to be the case here. The Court of Appeals (Chin, Jacobs and Sack) summarizes the evidence as follows:

Byer set forth evidence that Dr. Lowenguth made numerous derogatory and offensive statements, directly and implicitly referring to Byer's race, many of which were made in the three years leading up to Byer's resignation. For example, Dr. Lowenguth pulled Byer by the necklace and called her "Kunta"; circulated to the office a cartoon depicting Byer as a wild animal; said Byer looked like a "Mammy on the plantation"; told Byer to "talk that talk" to patients of color; brought to the office necklaces that displayed the words "bitch" and "slave" on them; commented that the office should provide Byer with fried chicken for lunch; joked that Byer would have nothing to eat when a restaurant said it had run out of ribs; referred to Byer as a pit bull; and said Byer dressed like the fictional Black character Buckwheat.

This evidence is enough for a trial on whether the dentist created a hostile work environment. Management argues that plaintiff did not always find this behavior abusive, but such evidence is really for the jury to sort out, as "there is also some evidence to the contrary." These kinds of disputes relating to whether the plaintiff found the conduct offensive are for the jury.

But plaintiff does not have a constructive discharge claim. These claims are very difficult to win. The plaintiff has to show the work environment was so awful that she had no choice but to leave. Few Second Circuit cases recognize such claims, and the Court of Appeals does not recognize it here. Why? Because plaintiff said nice things about the workplace and she did leave her employment right away. Here is how the Court sees it:

we note that within a year prior to her resignation, Byer stated that her "bosses rock," she was part of an "awesome team," she would never work for another periodontist, and Dr. Lowenguth was "good people" and like "family."  Further, Byer decided to resign before October 1, 2015, and yet she stayed on the job until November 6, 2015, and offered to work an additional week if defendants wanted her to do so, militating against a finding that she felt compelled to resign due to defendants' behavior.  On this record, we agree that no rational juror could infer that a reasonable person in Byer's shoes would have felt compelled to resign.

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