Monday, July 15, 2019

Racial harassment claim proceeds against Wal-Mart

The Court of Appeals has issued a summary reversal against Wal-Mart, which allegedly discriminated against a Black-Cuban-American employee whose internal complaints were met with retaliation.

The case is LeGrand v. Wal-Mart Stores East, LP, issued on July 11. This is an appeal from a Rule 12 order, which means there has not been any discovery yet and the court assumes the allegations in the complaint are true before it determines whether the plaintiff asserts a plausible claim for relief. There are three major holdings here: hostile work environment, constructive discharge and retaliation.

1. Plaintiff has a hostile work environment claim because "LeGrand’s supervisor, Karen Alles, and Alles’s supervisor, General Manager Eileen Matranga (both defendants), referred to LeGrand and her mother [Mims] using racial epithets on 'several occasions' in conversations with other co‐workers between February 2013 and August 2014. Mims and LeGrand do not allege hearing Defendants using that language first hand. They allege learning of it from LeGrand’s co‐workers." These allegation are enough to proceed to discovery on the harassment claim. The Court of Appeals (Droney, Jacobs and Leval) says "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." The Court does not cite case law for the proposition that comments made behind the plaintiff's back can create a hostile work environment, but that principle is firmly rooted in Second Circuit law, for example, Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 61 (2d Cir. 2000).

2. Plaintiff also has a constructive discharge claim. This holding is more interesting since most constructive discharge claims fail as the courts do not like it when employees walk off the job. In order to prove constructive discharge, the plaintiff has to show her working conditions were so awful that a rational person would have felt compelled to resign. Easier said than done. I don't think there are more than a dozen published, victorious constructive discharge claims in the Second Circuit over the last 25 years. But plaintiff sufficiently alleges such a claim in this case. The Court says, "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,' 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.'”

3. Finally, plaintiff pleads a retaliation claim. The Second Circuit: "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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