TABLE OF AUTHORITIES........................................................................... iii
STATEMENT OF INTEREST.......................................................................... 1
STATEMENT OF THE ISSUES....................................................................... 2
STATEMENT OF THE CASE......................................................................... 3
I. Statement of the Facts............................................................................ 3
II. District Court’s Decision....................................................................... 9
ARGUMENT................................................................................................. 15
I....... LeGrand
Plausibly Alleged That Walmart Discriminated Against Her, Including Subjecting
Her to “Adverse Actions” on the Basis of Her Race and/or Disability................................................................................ 16
II..... LeGrand’s Complaint Alleges
Plausible Claims of Race and Disability Harassment That Was Sufficiently Severe
or Pervasive to Alter the Terms and Conditions of Her Employment....................................................... 21
A.... This Court should hold that
hostile work environment claims are cognizable under the ADA......................................................... 21
B..... Whether analyzed as one hostile
work environment or two, the allegations in LeGrand’s complaint state viable
claims for race- and disability-based harassment................................................................................... 23
III.... LeGrand’s
Complaint Alleges Facts Sufficient to Support Plausible Claims of Retaliation
Under Title VII and the ADA......................................... 31
CONCLUSION.............................................................................................. 38
CERTIFICATE OF COMPLIANCE.............................................................. 39
CERTIFICATE OF SERVICE
Cases
Page(s)
Ashcroft v.
Iqbal,
556 U.S. 662
(2009)
...................................................................... 1, 10, 11, 15
Bell Atlantic
Corp. v. Twombly,
550 U.S. 544
(2007)
................................................................... 1, 9, 10, 15, 33
Beyer
v. County of Nassau,
524 F.3d 160 (2d
Cir. 2008) ......................................................................... 19
Boyer-Liberto v.
Fontainebleau Corp.,
786 F.3d 264
(4th Cir. 2015) (en banc) .................................................. 26,
27
Brennan v.
Metro. Opera Association, Inc.,
192 F.3d 310 (2d
Cir. 1999) ......................................................................... 24
Burlington
Northern & Santa Fe Railway Co. v. White,
548 U.S. 53
(2006) ...................................................................... 15,
31, 35, 36
Coleman v.
Donahoe,
667 F.3d 835 (7th Cir. 2012) ........................................................................ 19
Cruz v. Coach
Stores, Inc.,
202 F.3d 560 (2d
Cir. 2000) ................................................................... 24,
29
Davis v. New
York City Department of Education,
804 F.3d 231 (2d
Cir. 2015) ......................................................................... 18
Dollinger v. New
York State Insurance Fund,
No. 16-4068-cv,
2018 WL 832904 (2d Cir. Feb. 3, 2018) ............................. 21
Feingold v. New
York,
366 F.3d 138 (2d
Cir. 2004) .............................................................. 11,
17, 18
Fincher v.
Depository Trust & Clearing Corp.,
604 F.3d 712 (2d Cir. 2010) ................................................................... 14,
34
Flowers v.
Southern Regional Physician Services, Inc.,
247 F.3d 229 (5th Cir. 2001) ........................................................................ 22
Fox v. General
Motors Corp.,
247 F.3d 169 (4th Cir. 2001) .................................................................. 22,
28
Green v. Brennan,
136 S. Ct. 1769
(2016)
............................................................................ 20, 21
Green v.
Franklin National Bank of Minneapolis,
459 F.3d 903
(8th Cir. 2006) ........................................................................ 27
Gregory v. Daly,
243 F.3d 687 (2d
Cir. 2001) ........................................................................ 20
Gorzynski v.
JetBlue Airways Corp.,
596 F.3d 93 (2d
Cir. 2010) ........................................................................... 23
Harris v.
Forklift Sys., Inc.,
510 U.S. 17
(1993) ................................................................................. 24,
37
La Grande v.
DeCrescente Distributing Co., Inc.,
370 F. App’x 206
(2d Cir. 2010) .................................................................. 31
Lam v.
University of Hawaii,
40 F.3d 1551
(9th Cir. 1994) ........................................................................ 23
Lanman v.
Johnson County, Kansas,
393 F.3d 1151
(10th Cir. 2004) .................................................................... 22
Lorillard v.
Pons,
434 U.S. 575
(1978) ..................................................................................... 23
Littlejohn v.
City of New York,
795 F.3d 297
(2d Cir. 2015) ................................................................... 10,
31
McDonald v.
Santa Fe Trail Transportation Co.,
427 U.S. 273
(1976) ..................................................................................... 19
McDonnell
Douglas
Corp. v Green,
411 U.S. 792
(1973) ................................................................................ 10,
19
Meritor Savings
Bank, FSB v. Vinson,
477 U.S. 57, 66
(1986) .................................................................................. 22
Nichols v.
Azteca Restaurant Enterprises, Inc.,
256 F.3d 864
(9th Cir. 2001)
........................................................................ 29
Patane v. Clark,
508 F.3d 106 (2d Cir. 2007) .......................................................................... 33
Petrosino v. Bell Atlantic, Corp.,
385 F.3d 210 (2d Cir. 2015) ......................................................................... 12
Rivera v.
Rochester Genesee Regional Transportation Authority,
743 F.3d 11 (2d Cir. 2014) ............................................................... 26,
35, 36
Schiano v.
Quality Payroll Systems, Inc.,
445 F.3d 597 (2d Cir. 2006)
......................................................................... 30
Shaver v.
Independent Stave Co.,
350 F.3d 716
(8th Cir. 2003)
........................................................................ 22
Shultz v.
Congregation Shearith Israel of City of New York,
867 F.3d 298 (2d Cir. 2017) )
....................................................................... 21
Skinner v.
Switzer,
131 S. Ct. 1289 (2011) ................................................................................. 15
Swierkiewicz v.
Sorema, N.A.,
534 U.S. 506 (2002) ..................................................................................... 10
Tepperwien v.
Entergy Nuclear Operations, Inc.,
663 F.3d 556 (2d Cir. 2011) ................................................................... 36, 37
Vega v.
Hempstead Union Free School Dist.,
801 F.3d 72 (2d Cir. 2015)
............................................... 10 ,11, 15, 31
,33, 34
Wanamaker v.
Columbian Rope Co.,
108 F.3d 462 (2d Cir. 1997).......................................................................... 32
Whidbee v. Garzarelli Food Specialties, Inc.,
223 F.3d 62 (2d Cir. 2000) ..................................................................... 25,
30
Statutes/Rules
Fed. R. App. P.
29(a)
....................................................................................... 1
Fed. R. Civ. P.
8(a)(2) .................................................................................... 15
Fed. R. Civ. P.
12 (b)(6)
........................................................................ 9, 16, 33
Title I of the
Americans With Disabilities Act of 1990 (“ADA”),
42 U.S.C. §§
12112(a) .................................................................................. 22
42 U.S.C. §
12117........................................................................................... 1
Title VII of the
Civil Rights Act of 1964,
42 U.S.C. §§
2000e et seq. .............................................................................. 1
42 U.S.C. § 2000e-2(a)(1) ............................................................................ 22
Other Authorities
EEOC Compliance Manual, Section 15: Race and Color
Discrimination,
§ 15-VII(A)(2),
2006 WL 4673430 (June 1, 2006)............................................ 27
EEOC Enforcement Guidance on
Retaliation and Related Issues, 2016 WL 4688886 (Aug. 25, 2016)................................................................................. 37
Congress
charged the Equal Employment Opportunity Commission (“EEOC”) with interpreting,
administering, and enforcing Title VII of the Civil
Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and Title I of the Americans With
Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12117. The district court dismissed this
Title VII and ADA suit for failure to meet the pleading standards established
in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft
v. Iqbal, 556 U.S. 662 (2009). The court held that the complaint failed to
allege facts sufficient to demonstrate an adverse action for either the
discrimination or retaliation claims. Moreover, according to the court, the
allegations in the complaint, which included explicit racial and
disability-related epithets, were nonetheless insufficiently severe or
pervasive to constitute actionable harassment.
Because
this case raises important questions about the proper application of the legal
standards for pleading allegations of discrimination, harassment, and retaliation,
the EEOC offers its views. Fed. R. App. P. 29(a).
1.
Whether the
district court applied an overly stringent pleading standard in dismissing
LeGrand’s claims of race and disability discrimination for failure to identify
an “adverse action.”
2.
Whether the
district court erred in dismissing LeGrand’s hostile work environment claims
under Title VII and the ADA for failure to allege sufficiently severe or
pervasive harassment.
3.
Whether the
district court erred in dismissing LeGrand’s retaliation claim for failure to
plead an adverse action that “might well have dissuaded a reasonable worker
from making or supporting a charge of discrimination.”
Plaintiff
Chloe LeGrand began working at Walmart as a cashier in approximately February
2012. JA9-¶16.
The complaint describes LeGrand as a “Black-Cuban-American woman with mental
development disabilities,” JA8-¶11, and states that she suffers from
“development delay, asthma, and fibromyalgia.” JA10-¶19. In February
2013, LeGrand was transferred to a different store, working under the direct
supervision of Karen Alles and Eileen Matranga. JA10-¶18. LeGrand alleges that,
prior to her transfer, she and her mother, Angelina Mims, informed Alles and
Matranga about LeGrand’s developmental disability. JA10-¶20.
After
LeGrand’s transfer, she alleges, Alles and Matranga began discriminating
against her and harassing her based on her disability and her race. JA6, 7-¶¶2,
4. The complaint asserts that Alles and Matranga “purposely and
consistently” targeted LeGrand because they knew she was “easily susceptible to
mental stress because of her mental disability.” JA12-¶28. For example, Alles
and Matranga allegedly “routinely and consistently changed her routine,
including changing [her] daily duties[,] … instruct[ed] her to work a register
with no money in it, then change[d] her to another register[,] … alter[ed] her
assignment while she was in the middle of performing the task[,]” and required
her to perform tasks outside of her job description. JA12, 26-¶¶28-29, 88-89. LeGrand
also alleged that she was disciplined inappropriately, whereas other “similarly
situated [n]on-disabled or [w]hite employees” were not, for excessive
absenteeism and wearing a piercing at work. JA10,14-¶¶21, 38.
After
LeGrand and her mother made an internal complaint to the Walmart corporate
office about Alles’ and Matranga’s treatment of LeGrand, the complaint alleges,
Alles “started falsely alleging that [LeGrand] had failed to work on many
scheduled occasions. Defendant [Alles] intentionally refused to accept the
Doctor’s notes from [LeGrand] in order to abuse, discriminate [against], harass
and intimidate” her. JA10-¶22.
LeGrand
also alleged that she was subjected to a stream of verbal harassment about her
race and disability, both to her face and indirectly. According to the
complaint, Alles and Matranga, who knew LeGrand was required to take
medication, would “constantly harass [her] by asking her, ‘[w]hy are you taking
this medicine,’ and ‘[m]aybe you should change your medicine.’” JA11-¶26. When
LeGrand made a mistake, she alleged, “[Alles and Matranga] subjected [her] to
constant humiliation, harassment and demeaning comments related to her
disability.” JA12-¶30.
The
complaint further alleges that LeGrand learned from co-workers that Alles
referred to her and her mother as “porch monkeys” and “niggers.” JA11-¶¶ 23-24.
Alles was also allegedly repeatedly overheard calling LeGrand and her mother
“retards” and telling other employees that Mims was not LeGrand’s mother
because LeGrand was adopted. JA11, 13, 16-¶¶ 24, 32, 44. The complaint related
that, when LeGrand “found out that she was being ridiculed in front of other
employees, she was horrified and seriously impacted causing her to break down
and cry all day at the cash register.” JA13-¶32.
LeGrand
and Mims alleged that they called Walmart’s corporate office to report Alles’s offensive
remarks, but received no response. JA13-¶33. According to the complaint, Mims
also reported Alles’s comments to Matranga, who then, in violation of Walmart’s
policies, told Alles that LeGrand and Mims had complained about her. JA13-¶34.
LeGrand alleged that, thereafter, Matranga and Alles “collectively” retaliated
against her for reporting Alles. Id. She alleged that Alles retaliated
against her by “continually threatening her employment and subjecting her to
racial harassment and demeaning treatment.” JA18-¶55. Alles also allegedly
“disclosed personal medical information” about her to Walmart employees,
including that LeGrand had a miscarriage while working for Alles. JA13-¶35.
Alles allegedly called her and Mims “niggers … stating that ‘those “niggers”
called corporate on me and almost made me lose my job.’” JA14-¶36. Further,
LeGrand alleged, when she attempted to transfer to a different department or
store, “[r]ather than honor her request,” Alles and Matranga “purposely wrote
[LeGrand] up for numerous fabricated acts of misconduct to prevent [her] from
being transferred[.]” JA14, 15-¶¶39, 42.
According
to the complaint, when Walmart hired LeGrand, Walmart agreed to permit her to
attend school and work “a minimum of 20 hours in order to be eligible for
employee benefits.” JA-15, ¶40. Nonetheless, LeGrand alleged, when she enrolled
in school in August 2014 and requested a modified work schedule, Matranga
“intimidatingly told [her] that her hours cannot be changed, and that she would
have to either quit school or quit her job.” JA15-¶41. The complaint alleges
similar scheduling requests were “approved without any issues or the same level
of scrutiny” when made by other similarly-situated non-disabled or white
students. Id. Alles allegedly said she denied LeGrand’s request
because she “was not doing anything for that girl because her mother almost
made me lose my job.” JA15-¶42.
In
August 2014, LeGrand and Mims allegedly called Walmart’s corporate number again
and reported that both Alles and Matranga were subjecting LeGrand to
discriminatory treatment, but they received no response. JA16-¶43. LeGrand
alleged that, thereafter, “[t]he work place became laced with hostility.” Id.
“In retaliation for [the] complaints, … Alles intentionally disclosed
Plaintiff LeGrand’s confidential and personal information regarding her mental
disability to other employees.” JA16-¶44. LeGrand’s Walmart coworkers also
allegedly heard Alles say that Mims “was just as retarded as her daughter.” Id.
The
complaint further alleges that Alles falsely accused LeGrand of misconduct and
wrote her up for it. JA16-¶45. And a Walmart coworker allegedly informed
LeGrand that Alles had told her “she was purposely retaliating against
[LeGrand] because [Mims] had almost caused [Alles] to lose her job by
complaining to [Defendant Walmart’s] corporate office.” JA16-¶46.
LeGrand
alleged that, soon thereafter, she attempted again to discuss changing her work
schedule to allow her to attend school, but she “was explicitly told that she
did not have to be in school and she should quit school.” JA16-¶47. Left with
no other acceptable option, she alleged, she was forced to stop working at
Walmart to attend school. Id. According to the complaint, on information
and belief, Walmart never investigated any of LeGrand’s or Mims’s allegations,
and neither Alles nor Matranga was ever disciplined. JA17-¶¶48, 49.
LeGrand
filed an administrative complaint with the New York State Division of Human
Rights (NYSDHR), which was cross-filed with the EEOC, alleging discrimination
and hostile work environment (race/color and disability), and retaliation under
Title VII and the ADA. JA55-58. The NYSDHR made a finding of probable cause,
which the EEOC adopted. JA63. After requesting and receiving an administrative
dismissal from the NYSDHR, and later receiving a notice of right to sue from
the EEOC, LeGrand filed the present suit. JA61.
The
district court began by reciting the Supreme Court’s and this Court’s standards
for analyzing a Rule 12(b)(6) motion. SPA8-9 (quoting Bell Atl. v. Twombly,
550 U.S. 544, 570 (2007) (adequately stating a claim “does not require
heightened fact pleading of specifics, but only enough facts to state a claim
to relief that is plausible on its face”) (internal citations and quotation
marks omitted); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2002) (“A claim
has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.”). It noted this Court’s standard that, in Title VII
cases, “‘facts alleged in the complaint must provide at least minimal support
for the proposition that the employer was motivated by discriminatory intent.’”
SPA20 (quoting Littlejohn v. City of New York, 795 F.3d 297, 311 (2d
Cir. 2015)). It also noted the Supreme Court’s characterization in Swierkiewicz
v. Sorema, N.A., 534 U.S. 506, 510 (2002), of the McDonnell Douglas
“prima facie case” framework “as an evidentiary standard as opposed to a
pleading requirement.” SPA20 n.5 (internal citations and quotation marks
omitted); see also id. (observing that Vega v. Hempstead Union Free
Sch. Dist., 801 F.3d 72, 83 (2d Cir. 2015), “confirm[ed] the continued
viability of Swierkiewicz in Title VII cases” after Twombly and Iqbal).
The
court further observed that, to meet the Iqbal “plausibility” standard
in the discrimination context, “‘a plaintiff must plausibly allege that (1) the
employer took adverse action against him and (2) his [protected characteristic]
was a motivating factor in the employment decision.’” SPA21 (quoting Vega,
801 F.3d at 87). According to the court, to be materially adverse, “a change in
working conditions must be more disruptive than a mere inconvenience or an
alteration of job responsibilities.” SPA22 (citations omitted). “‘Examples of
materially adverse employment actions include termination of employment, a
demotion evidenced by a decrease in wage or salary, a less distinguished title,
a material loss of benefits, significantly diminished material responsibilities,
or other indices unique to a particular situation.’” Id. (quoting Feingold
v. New York, 366 F.3d 138, 152 (2d Cir. 2004) (alteration, citation and
internal quotations omitted)).
The
court recited a list of eight “adverse employment actions” that it characterized
as LeGrand’s allegations and concluded that “the Amended Complaint does not
contain the required factual nexus in support of” LeGrand’s discrimination
claims. SPA23-24. The court then cited a string of district court decisions,
each holding that a certain type of workplace action, standing alone, was
“insufficient to allege discrimination in the absence of a direct connection to
a materially adverse employment action taken against the employee.” SPA25-26.
Next
the court held that LeGrand failed to plausibly allege she was constructively
discharged. According to the court, to plead constructive discharge, the
employee must allege that the employer “intentionally” created an intolerable
work environment—which LeGrand did not do. SPA27-28 (quoting Petrosino v.
Bell Atl., 385 F.3d 210, 229 (2d Cir. 2004)).
The
court also held that LeGrand failed to state a hostile work environment claim
under either Title VII or the ADA. Recognizing that this Court has not yet
decided whether hostile work environment claims are cognizable under the ADA,
the district court observed that the applicable standards would nevertheless be
the same as for Title VII. SPA31 n.7. Referring back to its list of “adverse
actions,” the court continued, even analyzing LeGrand’s allegations “as a
complete unit,” she did not plead sufficient facts “to support the conclusion
that she was faced with harassment … of such quality or quantity that a
reasonable employee would find the conditions of her employment altered for the
worse…. [N]one of these alleged acts rise[s] objectively to the level of racial
hostility.” SPA33 (internal citations and quotation marks omitted).
The
court then held that Alles’s alleged epithets (i.e., “porch monkey,” “nigger,”
and “retard”) “fall short of the type, consistency or magnitude of conduct
needed to sufficiently plead a claim of hostile work environment, which
requires conduct that is severe or pervasive.” SPA33-34 (internal citations
omitted). The court analogized these epithets to those in cases involving a
“co-worker’s isolated comments that plaintiff was a ‘goody-goody’ and ‘the
holy-holy,’” “simple teasing, offhand comments, or isolated incidents of
offensive conduct,” a “[p]laintiff’s laundry list of inconveniences,
disagreements, and arguments,” and “complaints concerning unfair disciplinary
actions and workplace assignments not contain[ing] a suggestion of hostility or
offensiveness, nor that they were engaged in because of plaintiff’s race.”
SPA33-34 (internal citations omitted). Observing that “[t]he Supreme Court has
established demanding standards for plaintiffs asserting hostile work
environment claims in order to avoid construing Title VII as a ‘general
civility code,’” the court ordered LeGrand’s harassment claims dismissed. SPA35
(internal citations omitted).
On
the retaliation claim, the court refused to consider
LeGrand’s allegation “that Defendants’ failure to investigate her internal
complaints constituted an adverse employment action … since ‘the failure to
investigate a complaint cannot be considered an adverse employment action taken
in retaliation for the filing of that same complaint.’” SPA40 n.11 (quoting Fincher v. Depository Trust & Clearing Corp.,
604 F.3d 712, 722 (2d Cir. 2010)). According to the court, the remaining adverse
actions LeGrand alleged included false accusations of absenteeism, refusal to
accept physician notes, improper disclosure of her personal medical information,
and denying her requests for a transfer and scheduling change. The court held
that none of these actions—“individually or in the aggregate,” SPA41—“rise[s]
to the level” necessary to plausibly “dissuade a reasonable worker from making
or supporting a charge of discrimination.” SPA37 (quoting Vega, 801 F.3d
at 90 (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S.
53, 57 (2006))), 42. Moreover, it observed, “Plaintiff fails to plead any
specific facts showing what particularized injury she suffered as a result of
Defendants’ conduct.” SPA42. In addition, the court found it “highly relevant”
to its analysis “that [LeGrand] was undeterred from engaging in numerous
protected activities despite Defendants’ allegedly retaliatory conduct.” SPA42-44.
The
district court began its legal analysis on the right foot. It correctly recited
the governing language from Twombly, Iqbal, and this Court’s extensive
law construing these cases. See supra at 9-11. Nonetheless, the court ultimately
went astray by failing to apply these principles to LeGrand’s claims. In each
instance, it faulted her for failing to allege far more than was required,
particularly at this early stage of the litigation. See Fed. R. Civ. P.
8(a)(2) (requiring “a short and plain statement of the claim showing that the
pleader is entitled to relief”); Skinner v. Switzer, 562 U.S. 521,
529-30 (2011)) (on review of Rule 12(b)(6) dismissal, question “is not whether
[plaintiff] will ultimately prevail … but whether his complaint was sufficient
to cross the federal court’s threshold”) (internal citation and quotation marks
omitted). Viewed under the correct standards, LeGrand’s complaint was more than
sufficient to survive a Rule 12(b)(6) motion as to her discrimination,
harassment, and retaliation claims.
As
before, the district court began its analysis of LeGrand’s race and disability
discrimination claims by reciting many of the correct legal standards. See supra at 9-11.
Noting that an “adverse action” in the discrimination context requires a
“materially adverse change in the terms and conditions of employment,” the
court pointed to this Court’s list of examples in Feingold, which includes
“other indices unique to a particular situation.” SPA22.
The
court described LeGrand’s allegations as including being subjected to disparate
discipline based on fabricated acts of misconduct, being forced to remain at
work past her designated shift “at least two nights of the week,” denying her
scheduling requests and forcing her to work when ill, and assigning her
additional duties and “consistently changing [her] work routine and daily
tasks.” SPA23-24. But the court concluded that LeGrand failed to plausibly
allege that any of these actions “gave rise to material adverse changes in
[her] work conditions” or had an impact on “some tangible job benefits such as
compensation, terms, conditions or privileges of employment.” SPA24 (internal
citations and quotation marks omitted).
The
court made three principal errors. First, it treated this Court’s legal
standard for what constitutes an “adverse action” as far more rigid than it
actually is. In focusing unduly on the typical “tangible job benefits,” the
court failed to give due consideration to whether other “terms, conditions, or
privileges” of LeGrand’s employment might be at issue. See Davis v.
New York City Dep’t of Educ., 804 F.3d 231, 235 (2d Cir. 2015) (“We have no
bright-line rule to determine whether a challenged employment action is
sufficiently significant to serve as the basis for a claim of discrimination.”).
Moreover,
notwithstanding its nod to Feingold, the district court failed to
consider a significant and unusual, if not unique, aspect of this case:
LeGrand’s developmental disability. As LeGrand alleged, her condition renders
her especially susceptible to mental stress. Consequently, Walmart’s requiring
her to work extra hours, assigning her extra tasks, or repeatedly changing the
order of her tasks could impact the terms and conditions of her employment very
differently than they might for the “average,” neurotypical Walmart cashier.
Second,
even viewing the “adverse action” standard conventionally, LeGrand pled
sufficient facts to allege discrimination based on her race and/or disability.
As described above, LeGrand alleged disparate discipline because of her race,
disability, or both. Ultimately, she alleged not only that this treatment
resulted in her constructive discharge, but also in her being denied a transfer
she sought—a transfer that would have removed her from Alles’ and Matranga’s
reporting structure and significantly changed her working conditions. JA14-15¶39.
These allegations were sufficient to state a claim for disparate discipline. See
Beyer v. Cty. of Nassau, 524 F.3d 160, 164 (2d Cir. 2008) (transfer denial
“may [] constitute an adverse employment action, but we require a plaintiff to
proffer objective indicia of material disadvantage; ‘subjective, personal
disappointment[]’ is not enough”) (internal citation omitted); Coleman v.
Donahoe, 667 F.3d 835, 850 (7th Cir. 2012) (“[A]s [the Supreme Court]
indicated in McDonnell Douglas, an allegation that other employees
involved in acts against [the employer] of comparable seriousness received more
favorable treatment is adequate to plead an inferential case of
discrimination.”) (quoting McDonald v. Santa Fe Trail Transp. Co., 427
U.S. 273, 283 n.11 (1976)) (internal citations and quotation marks omitted).
Finally,
the district court concluded that LeGrand’s allegations of constructive
discharge were insufficient to constitute “adverse employment actions.”
SPA26-30. In so doing, the court failed to apply controlling Supreme Court
precedent. As explained in Green v.
Brennan, 136 S. Ct. 1769, 1779-80 (2016), the “whole point” of a
constructive discharge claim is that “in circumstances of discrimination so
intolerable that a reasonable person would resign, we treat the employee’s
resignation as though the employer actually fired him…. We do not also require
an employee to come forward with proof—proof that would often be difficult to
allege plausibly—that … his quitting was his employer’s plan all along.”
We also
note some lingering confusion in this Court. In Shultz v. Congregation
Shearith Israel of City of N.Y., 867 F.3d 298, 308 (2d Cir. 2017), this
Court quoted the Green constructive discharge standard, but rejected the
plaintiff’s claim for failure to meet the pre-Green standard. See
id. (requiring “evidence of the employer’s intent to create an intolerable environment
that forces the employee to resign”) (internal citation and quotation marks
omitted). The intent-based standard this Court applied in Shultz, and
the district court applied here, is incompatible with Green and cannot
survive it.
This
Court has not yet expressly recognized the viability of a disability harassment
claim. See, e.g., Dollinger v. NY State Ins. Fund, No.
16-4068-cv, 2018 WL 832904, at *3 (2d Cir. Feb. 13, 2018). Every court of
appeals that has ruled on the issue has held that such claims are actionable.
See Lanman v. Johnson Cty., Kan., 393 F.3d 1151, 1155-56 (10th Cir.
2004); Shaver v. Indep. Stave Co., 350 F.3d 716 (8th Cir. 2003); Fox
v. Gen. Motors Corp., 247 F.3d 169 (4th Cir. 2001); Flowers v. S. Reg’l
Physician Servs., Inc., 247 F.3d 229 (5th Cir. 2001).
The
ADA’s legislative history and Title VII jurisprudence support this result. When
Congress enacted the ADA in 1990, it incorporated Title VII’s language
prohibiting intentional discrimination as to the “terms, conditions, or
privileges of employment.” 42 U.S.C. §§ 12112(a), 2000e-2(a)(1). By that time,
the Supreme Court had already interpreted this language in Title VII to
encompass a hostile work environment. E.g., Meritor Sav. Bank, FSB v. Vinson,
477 U.S. 57, 66 (1986). “[W]here … Congress adopts a new law incorporating
sections of a prior law, Congress normally can be presumed to have had
knowledge of the interpretation given to the incorporated law, at least insofar
as it affects the new statute.” Lorillard v. Pons, 434 U.S. 575, 581
(1978).
Although
it did not explicitly say so, the district court analyzed LeGrand’s Title VII
and ADA hostile work environment claims together. SPA-30-35. The court
considered the totality of LeGrand’s allegations of harassment as a black,
disabled person, rather than as separate claims of harassment for being black
and for being disabled. This approach was appropriate and consistent with this
Court’s case law. See Gorzynski v. JetBlue Airways Corp., 596 F.3d 93,
110 (2d Cir. 2010) (“[W]here two bases of discrimination exist, the two grounds
cannot be neatly reduced to distinct components[.]”); see also id. (observing
that attempting to “‘bisect a person’s identity at the intersection of [two
characteristics] often distorts or ignores the particular nature of their
experiences’”) (citing and quoting Lam v. Univ. of Haw., 40 F.3d 1551,
1562 (9th Cir. 1994)); Cruz v. Coach Stores, Inc., 202 F.3d 560, 572 (2d
Cir. 2000) (recognizing “interplay between … sex-based and race-based
hostility”) (overruled in part on other grounds). But see Brennan v. Metro.
Opera Ass'n, Inc., 192 F.3d 310, 319 (2d Cir. 1999) (dismissing age-based
and gender-based harassment claims separately).
Considering
the environment as a unified whole is also consistent with the Supreme Court’s
teachings on the analysis of hostile work environment cases. See, e.g.,
Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 81 (1998) (The
“objective severity of harassment should be judged from the perspective of a
reasonable person in the plaintiff's position, considering ‘all the circumstances.’”)
(internal citation omitted); Harris v. Forklift Sys., Inc., 510 U.S. 17,
23 (1993) (severity is not assessed with “a mathematically precise test,” but
rather “determined only by looking at all the circumstances”); see also,
e.g., Redd v. NYS Div. of Parole, 678 F.3d 166, 176 (2d Cir. 2012)
(courts should assess objective severity “considering all the circumstances
[including] the social context in which the particular behavior occurs and is
experienced by the target”).
Whether
this Court considers LeGrand’s harassment allegations separately or together,
the district court erred in ruling that they were insufficient to state a
plausible hostile work environment claim. In reaching this conclusion, the
court improperly minimized the severity of many of LeGrand’s allegations,
failed to consider the totality of the circumstances of LeGrand’s work
environment, and inappropriately treated various precedents of this Court as
establishing a baseline for actionable harassment when they do not.
In
addition to the extensive allegations supporting her Title VII discrimination
and retaliation claims, LeGrand alleges that fellow employees told her that her
supervisor referred to her and her mother as “niggers” and “porch monkeys.”
This Court and others have recognized that calling someone a “nigger” can, in
some circumstances, be sufficiently severe on its own to create a hostile work
environment. “Perhaps no single act can more quickly alter the conditions of
employment and create an abusive working environment than the use of an
unambiguously racial epithet such as ‘nigger’ by a supervisor in the presence
of his subordinates.” Rivera v. Rochester Genesee Reg’l Transp. Auth.,
743 F.3d 11, 24 (2d Cir. 2014) (internal citations and quotation marks
omitted); see also Daniel v. T & M Prot. Res., LLC, 689 F.
App’x 1, 2 (2d Cir. 2017) (holding that district court erred in rejecting as a
matter of law plaintiff’s argument that “the one-time use of the slur ‘nigger’
by a supervisor to a subordinate can, by itself, support a claim for a hostile
work environment”); Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264,
280 (4th Cir. 2015) (en banc) (describing the term “nigger” as “pure anathema
to African-Americans”) (internal citation omitted) McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1116 (9th Cir.
2004) (“It is beyond question that the use of the word ‘nigger’ is highly
offensive and demeaning, evoking a history of racial violence, brutality, and
subordination.”).
Further,
calling someone “‘porch monkey’ is about as odious as the use of the word
nigger.” Boyer-Liberto, 786 F.3d at 280. Other courts have agreed. See,
e.g., Green v. Franklin Nat’l Bank of Minneapolis, 459 F.3d 903, 911
(8th Cir. 2006) (collecting cases, and observing that “the term ‘monkey’ and
other similar words have been part of actionable racial harassment claims across
the country”). See also EEOC Compliance Manual, Section 15: Race and
Color Discrimination, § 15-VII(A)(2), 2006 WL 4673430 (June 1, 2006) (“a
single, extremely serious incident of harassment may be sufficient to
constitute a Title VII violation”); id. (“racial comparison to an
animal” and a one-time occurrence can create a hostile work environment).
With
respect to disability harassment, LeGrand alleged that her supervisors, Alles
and Matranga, knew that her developmental disability made her particularly
vulnerable to mental stress and deliberately created a high-anxiety work
environment to cause her to break down. Accordingly, she alleged, they
ridiculed and demeaned her because of her disability in front of employees,
called her and her mother “retards,” and asked her pointed, mocking questions
about the medication she was taking. She further alleged that her supervisors
would “torment and harass her by purposely and consistently chang[ing] her
routine, including [her] daily duties … [and] instruct [her] to work at a
register with no money in it, then change her to another register.” See
supra, at 3-8.
This
was more than enough to state a claim for disability harassment. See, e.g.,
Fox, 247 F.3d at 179 (upholding jury verdict for plaintiff on disability
harassment claim where plaintiff “offered a good deal of evidence that [his]
supervisors … , in vulgar and profane language, constantly berated and harassed
him … at least weekly … [and] encouraged other employees to ostracize the
disabled workers and prevent them from doing their assigned tasks by refusing
to give them necessary materials”).
Nonetheless,
as described above, the district court held that LeGrand’s allegations “fall
short of the type, consistency or magnitude of conduct needed to sufficiently
plead a claim of hostile work environment.” SPA33. It minimized the severity of
the comments at issue, analogizing them to mere name-calling, teasing, and
offhand comments, and concluded that dismissal was warranted in this case just
as it was in cases involving these lesser allegations.
In
so concluding, the district court made several legal errors. First, it
inappropriately downplayed the severity of her supervisors’ racial epithets and
the pervasiveness of their disability-based hostility allegedly directed at
LeGrand. An actionable hostile work environment need only be severe or
pervasive—not both—and the more severe the allegations, the less pervasive they
need be to be actionable. See, e.g., Cruz, 202 F.3d at 570 (claim
can be demonstrated by evidence that “a single incident was extraordinarily
severe, or … a series of incidents were ‘sufficiently continuous and
concerted’ to have altered the conditions of [plaintiff’s] working
environment”) (superseded by statute on other grounds); Nichols v. Azteca
Rest. Enters., Inc., 256 F.3d 864, 872 (9th Cir. 2001) (“The required level
of severity or seriousness varies inversely with the pervasiveness or frequency
of the conduct.”) (internal citation and quotation marks omitted).
Second,
even assuming, as the district court did, that the harassment here was not as
extreme as that in other cases, that alone does not justify dismissal. “We have
[] warned that the fact that the law requires harassment to be severe or
pervasive before it can be actionable does not mean that employers are free
from liability in all but the most egregious of cases. Prior cases in which we
have concluded that a reasonable juror could find that the work environment was
objectively hostile do not establish a baseline that subsequent plaintiffs must
reach in order to prevail.” Schiano v. Quality Payroll Sys., Inc., 445
F.3d 597, 606 (2d Cir. 2006) (internal citations and quotation marks omitted).
“[T]here is neither a threshold magic number of harassing incidents that gives
rise, without more, to liability as a matter of law, nor a number of incidents
below which a plaintiff fails as a matter of law to state a claim.” Whidbee
v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 70 (2d Cir. 2000)
(internal citation and quotation marks omitted).
Therefore,
LeGrand’s complaint stated plausible race- and disability-based hostile work
environment claims sufficient to survive dismissal. See La Grande v.
DeCrescente Distrib. Co., Inc., 370 F. App’x 206, 210-11 (2d Cir. 2010) (vacating
dismissal of plaintiff’s racial harassment claim where he alleged two instances
of racial epithets separated by more than seven months, threats and retaliation
for complaining about the incidents, and failure to follow up on his
complaint).
To
survive a motion to dismiss on her retaliation claims, LeGrand was required to plausibly
allege that Walmart took an adverse action against her because she opposed a
practice made unlawful under either Title VII or the ADA.
Vega, 801 F.3d at 90. In the retaliation context, an adverse action is
one that “might well have dissuaded a reasonable worker from making or
supporting a charge of discrimination.” Burlington N., 548 U.S. at 68.
“[C]ourts must pore over each case to determine whether the challenged
employment action reaches the level of adverse,” and there are “no bright-line
rules.” Wanamaker v. Columbian Rope Co., 108 F.3d 462, 466 (2d Cir.
1997).
As
described supra at 6-8, LeGrand alleged that, after complaining to
Walmart’s upper management, Alles and Matranga began a campaign of retaliation
against her. This included falsely accusing LeGrand of failing to show up for
work and refusing to accept her doctor’s notes, “continually threatening her
employment and subjecting her to racial harassment and demeaning treatment,”
JA18-¶55. Further, LeGrand
alleged that Alles spread rumors about her, disclosed her private medical
information to her coworkers, wrote her up for fabricated acts of misconduct,
blocked her transfer to another store, and ultimately refused to honor Walmart’s
agreement to grant her a schedule change to attend school. Allegedly, no one
from Walmart corporate investigated LeGrand’s complaints or communicated with
her about them, and neither Alles nor Matranga was ever disciplined.
These
allegations presented more than “enough facts to raise a reasonable expectation
that discovery will reveal evidence of” actionable retaliation. Twombly,
550 U.S. at 556; see also Patane v. Clark, 508 F.3d 106, 116 (2d
Cir. 2007) (“Only a statement of facts so conclusory that it fails to give
notice of the basic events and circumstances on which a plaintiff relies should
be rejected as legally insufficient under 12(b)(6).”). See Vega, 801
F.3d at 91-92 (holding that plaintiff, a high school teacher, adequately pled a
retaliation claim under Title VII based on “his assignment of notoriously
absent students, his temporary paycheck reduction, [] the District’s failure to
notify him of a curriculum change, and … his negative performance review”).
None
of the reasons the district court advanced for dismissing LeGrand’s retaliation
claim have legal support. First, insofar as the court questioned whether to consider
her allegations “individually or in the aggregate,” SPA14, this Court has
indicated that the latter approach is correct. See Vega, 801 F.3d at 92
(“Some of these actions, considered individually, might not amount to much.
Taken together, however, they plausibly paint a mosaic of retaliation and an
intent to punish Vega for complaining of discrimination.”).
Second,
the district court erred in holding that Fincher categorically precluded
LeGrand from challenging as “adverse actions” Walmart’s failure to investigate her
Title VII and ADA complaints. In Fincher, this Court held that “an
employer’s failure to investigate a complaint of discrimination cannot be
considered an adverse employment action taken in retaliation for the filing of the
same discrimination complaint.” 604 F.3d at 721 (emphasis added). However, Fincher
explained, “failure to investigate a complaint … can be [considered an adverse
action] if the failure is in retaliation for some separate, protected act by
the plaintiff.” Id. at 722.
In
this case, LeGrand alleged that she complained on at least two separate
occasions: a first time to Walmart corporate, and a second time to Walmart
corporate and to Matranga. Thus, Fincher does not preclude LeGrand from
alleging that Walmart and/or Matranga did not investigate her second round of
complaints in retaliation for her first round.
Third,
the district court erroneously faulted LeGrand for failing to plead any
“particularized injury,” apart from its previously-rejected constructive
discharge claim, in connection with her retaliation claim. It is unclear what
the court meant here. As Rivera explains, this is the very purpose of
the “materially adverse [] action” requirement—it “reflects the principle that
Title VII does not protect an employee from all retaliation, but only
retaliation that produces an injury or harm.” 743 F.3d at 24-25 (internal
citations and quotation marks omitted). If LeGrand pled that she was subjected
to actions that were materially adverse under Burlington Northern, she
was not required to do more.
Finally,
the court weighed against LeGrand her ability to continue working at Walmart
and complaining about her alleged mistreatment (albeit with her mother’s help)
because it “belies the reasonable inference, even at the pleading stage, that
the actions complained of, separately or together, are sufficiently material to
constitute the required adverse employment action.” SPA44. As applied to
LeGrand, this reasoning turns Title VII and the ADA on their heads.
As the
Supreme Court and this Court have noted repeatedly, it is axiomatic in
retaliation cases that “context matters.” See, e.g., Burlington N.,
548 U.S. at 69; Rivera, 743 F.3d at 25; Tepperwien v. Entergy Nuclear
Operations, Inc., 663 F.3d 556, 568 (2d Cir. 2011). In analyzing LeGrand’s
retaliation claim, the district court inappropriately disregarded the markedly
different contexts of the cases it relied on.
For example,
the plaintiff in Tepperwien was a security officer who worked at a
“security unit … akin to a law enforcement or quasi-military unit.” 663 F.3d at
572. Accordingly, this Court observed, “[t]he task of securing a nuclear power
plant raised significant safety concerns not found in most work environments,
and, understandably, there was little tolerance for mistakes and rule
violations, or even perceived mistakes. It is not surprising that Tepperwien
was treated in a rough and tumble manner rather than with kid gloves or in a
genteel fashion.” Id. This was the context of this Court’s holding that
“a reasonable employee in Tepperwien’s situation would not have been deterred
from engaging in protected activities”—especially given that Tepperwien “acknowledged,
… when it was clear that he was leaving Entergy, that he would consider working
[there] again and that overall he was satisfied with his job at Entergy.” Id.
LeGrand’s
work environment, working as a cashier at a Walmart, is worlds apart from Tepperwien’s.
Her situation is analogous to that of harassment plaintiffs (which she is) who
withstand workplace abuse without falling apart. There is simply no legal or
logical justification for punishing her because she refused to be silenced. See,
e.g., EEOC Enforcement Guidance on Retaliation and Related Issues, 2016 WL
4688886, at *19 (Aug. 25, 2016) (“If the employer’s action would be reasonably
likely to deter protected activity, it can be challenged as retaliation even if
it falls short of its goal.”); cf. Harris v. Forklift Sys., Inc., 510
U.S. 17, 22 (“Title VII comes into play before the harassing conduct leads to a
nervous breakdown.”).
For
the foregoing reasons, the judgment of the district court should be reversed
and the case remanded for further proceedings.
Respectfully
submitted,
JAMES L. LEE
Deputy General
Counsel
JENNIFER S.
GOLDSTEIN
Associate
General Counsel
ELIZABETH E.
THERAN
Assistant
General Counsel
s/Susan L.
Starr
SUSAN L. STARR
Attorney
U.S. EQUAL
EMPLOYMENT
OPPORTUNITY
COMMISSION
Office of
General Counsel
131 M St., N.E.,
5th Floor
Washington, D.C.
20507
(202) 663-4727
susan.starr@eeoc.gov
This
brief complies with the type-volume limitation of Fed. R. App. P. 29(d) and
32(a)(7)(B) because it contains 6,444 words, excluding the parts of the brief
exempted by Fed. R. App. P. 32(f).
This
brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and
the type style requirements of Fed. R. App. P. 32(a)(6) because it has been
prepared in a proportionally spaced typeface using Microsoft Word 2016 in Times
New Roman 14 point.
s/Susan L.
Starr
Attorney for the
Equal Employment Opportunity Commission
Dated: May 10,
2018
No. 18-171