Appellant, an employee of Puerto Rican descent, brought a civil rights action under 42 U.S.C. § 1981 against his employer alleging that he had been subjected to a hostile work environment and had been constructively discharged. The United States District Court for the Southern District of New York (Knapp, J.) granted employer's motion for summary judgment. Affirmed in part, reversed in part and remanded.
Lumbard, Oakes and Cardamone, Circuit Judges.
This case presents for our consideration whether unchecked ethnic epithets directed towards an employee may contribute to the employee's constructive discharge from his employment, and whether this type of harassment may also serve as the basis for a hostile work environment claim entitling plaintiff to relief in his civil rights suit against his employer. Although we recognize that an employer is unable to guarantee a working environment uncontaminated by foul invective, the law nonetheless provides that when an employer knows or reasonably should know that co-workers are harassing an employee because of that individual's race, color, religion, sex, or national origin, the employer may not stand idly by. In our view, the allegations in the instant case are sufficient to avoid dismissal of the employee's constructive discharge claim.
Appellant Cruz Lopez, who is of Puerto Rican descent, filed his complaint against his former employer, S.B. Thomas, Inc. (Thomas), under 42 U.S.C. § 1981 (1982) and the Human Rights Law of the State of New York, N.Y. Exec. Law § 296 (McKinney 1982 & Supp. 1987), alleging that his working environment was so discriminatory and hostile that he was forced the Southern District of New York (Knapp, J.) granted the employer's motion for summary judgment under Fed. R. Civ. P. 56. We affirm as to the hostile work environment claim and reverse and remand on appellant's claim of constructive discharge.
Lopez, a New York resident, began working for Thomas, a New Jersey producer of baked goods, in 1973 as an assistant to the regional sales manager in the thrift division. After a series of promotions and transfers, appellant in 1978 rose to the position of District Sales Manager for fresh goods and served in this position for seven years without receiving any unsatisfactory performance reviews. On January 31, 1985 his supervisor, Thomas Elmore, gave him an overall rating of 3.7 out of an ideal 6, with "acceptable" scores in 6 of the 7 "competence areas." During this period, Lopez was the only minority District Sales Manager in Thomas's New York office.
In February, 1985 he was transferred to Thomas's Greensburgh, New York depot. The next month Donald Hunsberger, a white male, was appointed Regional Director of that facility, becoming plaintiff's direct supervisor. From this point Lopez's relationship with his employer deteriorated. Almost immediately Hunsberger became upset with Lopez because of the manner in which he filed an expense account report, through Lopez claims that his filing was the customary one under his previous supervisor. A second incident occurred a month later when appellant failed to engage in selling while escorting Thomas' Vice President of Sales and the Division Manager to several customers in the region. Lopez and Hunsberger disagree as to what instructions the latter gave Lopez regarding these visits. After the Division Manager, Robert Forest, complained to Hunsberger that Cruz acted as a tour guide without giving a sales presentation, Hunsberger called Lopez aside and, according to Lopez, burst into degrading and lewd obscenities directed towards him.
A few weeks later Lopez went to Forest to complain about Hunsberger's outburst. According to appellant, Forest asked him what he was going to do about it, and when Lopez responded that he thought that by approaching Forest he was doing something about it, Forest suggested that Lopez resign. Afterwards, Forest filed an assessment of appellant, noting that while only a few weaknesses had been previously noted, Lopez was now "underqualified to perform" his job as District Sales Manager.
Hunsberger filed another review in June 1985. In this report Lopez received a score of only 2.1 out of 6 and his work was rated "below expectations" or "unacceptable" in 5 of the 7 areas of review. On June 19 Lopez met with Hunsberger to discuss the report. At the meeting, Hunsberger put him on a 90-day probationary period. Lopez claims that Hunsberger also told him that he would be fired at the end of the period regardless of his performance. Hunsberger denies this and states that he placed Lopez on a 90-day "developmental program," detailed in a June 20 memorandum to Lopez, designed to raise his performance "up to par." Hunsberger consulted with Forest before putting Lopez on this program. After the June 19 conversation with Hunsberger, Lopez sought other employment and quickly obtained a comparable job at one of Thomas' competitors. He resigned on June 29, 1985.
In September 1985 the instant action was filed. Neither the complaint nor plaintiff's motion papers are models of clarity, but the district court understood Lopez's claim to be that defendant's actions "amounted to 'constructive discharge' by making the working environment so discriminatory and hostile that plaintiff had no choice but resignation." Plaintiff requested compensatory damages for emotional distress and attorney's fees. The district court granted defendant's motion for summary judgment on plaintiff's § 1981 cause of action on the ground that plaintiff failed to allege that "defendant had actual, or at least constructive, knowledge that the working environment was 'overrun by racial antagonism.'" (quoting Snell v. Suffolk County, 782 F.2d 1094, 1102 (2d Cir. 1986)). The district court did not address the pendent New York claim, nor do we either in light of our conclusion that the case should be remanded in part.
Under Fed. R. Civ. P. 56(c) a trial judge shall grant summary judgment if the evidence offered demonstrates that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Anderson v. Liberty Lobby, 477 U.S. 242, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202 (1986). The burden rests on the moving party to demonstrate the lack of a genuine issue of fact, Adickes v. S.H. Kress & Co., 398 U.S.144, 157, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970), and the record "must be viewed in the light most favorable to the party opposing the motion." United States v. Diebold, Inc., 369 U.S. 654, 655, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962). On appeal, the same standard is applied by the reviewing court as that applied by the district court, Burtnieks v. City of New York, 716 F.2d 982, 985 (2d Cir. 1983), and the grant of summary judgment will not be reversed based on arguments and facts that were not presented in the district ...