Whidbee v. Garzarelli Food Specialties, Docket No. 99-9470

• Decision Date: 01 August 1999
• Docket Number: Docket No. 99-9470
• Citation: 223 F.3d 62
• Parties: (2nd Cir. 2000) JOCELYN WHIDBEE, SHIRLENE TRANQUILLE, Plaintiffs-Appellants, v. GARZARELLI FOOD SPECIALTIES, INC., ED AND JOHN GARZARELLI, OWNERS, Defendants-Appellees
• Court: U.S. Court of Appeals — Second Circuit

Page 62

223 F.3d 62 (2nd Cir. 2000)

JOCELYN WHIDBEE, SHIRLENE TRANQUILLE, Plaintiffs-Appellants, v. GARZARELLI FOOD SPECIALTIES, INC., ED AND JOHN GARZARELLI, OWNERS, Defendants-Appellees.

Docket No. 99-9470

August Term, 1999

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Argued: June 8, 2000

Decided: August 14, 2000

Appeal from a grant of summary judgment by the United States District Court for the Southern District of New York (Colleen McMahon, Judge) in favor of the defendant employer on plaintiffs' claims of hostile work environment and constructive discharge under 42 U.S.C. § 1981 and unlawful discriminatory practices under New York law.

We hold that summary judgment was inappropriate as to plaintiffs' hostile work environment and state law claims, but was appropriate as to plaintiffs' constructive discharge claims and claims against the owners of the employing corporation in their individual capacities.

Affirmed in part, vacated in part, and remanded.

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] STEPHEN BERGSTEIN, Law Office of Michael H. Sussman, Goshen, NY (Michael H. Sussman, on the brief), for Plaintiffs-Appellants.

MICHAEL P. PAPPAS, Roberts & Finger, New York, NY (Joel L. Finger, on the brief), for Defendants-Appellees.

Before: OAKES, NEWMAN, and STRAUB, Circuit Judges.

STRAUB, Circuit Judge:

Plaintiffs Jocelyn Whidbee and Shirlene Tranquille appeal from a grant of summary judgment in favor of the defendants, Garzarelli Food Specialties ("GFS") and Ed and John Garzarelli, by the United States District Court for the Southern District of New York (Colleen McMahon, Judge).

Whidbee and Tranquille were employed at a McDonald's Restaurant franchise in Middletown, New York, owned and operated by GFS. They brought claims against GFS and its owners, Ed and John Garzarelli alleging employment discrimination under 42 U.S.C. § 1981 and New York state law.¹

The District Court granted the defendants' motion for summary judgment, finding that the plaintiffs had failed to demonstrate a question of fact as to the existence of a hostile work environment, constructive discharge, and individual liability on the part of the franchise owners, and were precluded from bringing their state law claims because they had filed administrative charges against the defendants with the New York State Division of Human Rights.

For the reasons given below, we conclude that the plaintiffs presented sufficient evidence of a hostile work environment and of employer liability to survive summary judgment. We also find that the plaintiffs' state law claims are not precluded because the New York State Division of Human Rights dismissed the plaintiffs' complaints on the grounds of administrative convenience. We agree, however, that the plaintiffs failed to demonstrate constructive discharge and individual liability on the part of the franchise owners.

Accordingly, we affirm in part, vacate in part, and remand for further proceedings.

BACKGROUND

Taking the plaintiffs' allegations to be true, as we must on review of a grant of summary judgment, see Distasio v. Perkin Elmer Corp., 157 F.3d 55, 64 (2d Cir. 1998); In re IBM Corp. Sec. Litig., 163 F.3d 102, 109 (2d Cir. 1998), the record reveals the following events.

In late 1997, Jocelyn Whidbee and Shirlene Tranquille, both of whom are African-American, began working at a McDonald's Restaurant franchise in Middletown, New York, owned and operated by GFS. Beginning in April 1998, they were subjected to racially offensive comments made by a co-worker, Richard Corliss, that lasted until their resignations in June 1998.²

In April or May of 1998, Corliss told Tranquille while they were having lunch in the restaurant's break room that "Puerto Ricans are harder workers than Mexicans"; that another co-worker, who is Mexican, "smelled"; that he "had a problem with Mexicans"; that "Middletown was getting worse because of the blacks and the Puerto Ricans," who "are bringing down Middletown"; and that "blacks need to stop with the slang." Again in May, Corliss told Tranquille that "Blacks and Puerto Ricans are lazy and don't want to work."

In early June, the plaintiffs overheard Corliss telling another co-worker, Jamie Hunter, that Hunter is a "lazy black boy" because he does not "like to work" and that Corliss had a "rope in the back shed to hang [Hunter's] butt."

On June 8, the plaintiffs complained to their supervisors. They initially approached Tina Hanley; Hanley steered the plaintiffs to Grable. The plaintiffs informed Grable that Corliss had directed racist statements toward them and other McDonald's employees during the two preceding months. The plaintiffs claim that Grable told Tranquille that she would have to handle the problem herself; the defendants claim that Grable told the plaintiffs that he would speak to Corliss. Regardless, it is undisputed that Grable did not speak to Corliss on June 8.

On June 9, Tranquille heard Corliss refer to Hunter as a "lazy black snake." The plaintiffs immediately complained again to Grable, and Grable assured them that he would speak to Corliss. Grable avers that he intended to speak to Corliss that day, but that Corliss had already left for the day before he had an opportunity to do so. The next day, June 10, both Corliss and Grable were not at the restaurant all day, and on June 11, Grable was off. Grable did not speak to either the store owners or the other managers about the matter.

On approximately June 10, Whidbee and Tranquille submitted notices of resignation, effective June 23.³ The plaintiffs stated that part of their reason for resigning was the racial tension at work, but Whidbee also acknowledged that she wished to apply for work closer to home.

On June 11, while Grable was still away from the restaurant, Corliss called both Whidbee and Tranquille "black sheep." The plaintiffs immediately complained to Hanley. Hanley did nothing on June 11, but reported the incident to Grable when he returned to work on June 12.

On the morning of June 12, Whidbee asked Grable to meet with her, but Grable said he was too busy and had to take care of other things. Later that day, however, after Hanley reported the "black sheep" incident, Grable apparently met with Corliss and gave him a verbal warning.

On June 16, the plaintiffs met with Grable.⁴ The plaintiffs tape recorded the meeting without Grable's knowledge. At the meeting, the plaintiffs reported another comment Corliss had recently made to a co-worker-Corliss allegedly said that he "still can't stand black folk"-and cited his continued slurs as the reason for their resignations. Grable replied that he "can't control [Corliss's] mouth"; that if the plaintiffs have a personal problem with Corliss "maybe [they] should approach him" themselves; that he does not "know how to deal with" the problem and does not "want to deal with it" because it is "just too much" for him; and that if talking to Corliss by either Grable or the plaintiffs does not solve the problem, then the plaintiffs "have to leave." When the plaintiffs mentioned that their job applications promised "no discrimination," Grable responded, "That's McDonald's, no discrimination[;] [Corliss] is not McDonald's." Grable also told the plaintiffs that he had a picture of Diana Ross in the back seat of his car and that in his view "the white people should have stayed out of Africa and not brought the people over here, but we can't change that." Grable then opined that the "whole thing is being blown out of proportion."

In the meeting Grable also said that he and the plaintiffs should meet with Corliss, and that Corliss "either [has] got to stop saying it or he has to quit." Grable stated that he would have "to do some research through McDonald's, too, to find out exactly . . . which way I should handle this, if it can't be stopped."

Regarding their two-week resignation notices, Grable asked the plaintiffs if they had changed their minds. Whidbee replied, "[I]f it's gonna keep going on, I'm not gonna stay." She also said that she would think about staying at the Middletown franchise, but that another franchise is closer to her home and working there would allow her to spend more time with her son.

After the meeting on June 16, Grable issued Corliss a written warning, stating that any further offensive conduct would result in disciplinary measures, up to and including termination. Notwithstanding this warning, Corliss continued to make offensive comments. As Whidbee testified at her deposition, on June 17 or 18 Corliss discussed the incident in Texas in which an African-American man was dragged to his death from a pick-up truck. Corliss told Hunter that Corliss "should go out and buy a truck and drag someone by the truck who is black," and then told Tranquille that the victim must have provoked his killers. Corliss also commented that "Al Sharpton [is] basically a rich, black man trying to make money off of lies."

On June 26, Whidbee met with Patrick Grable, McDonald's District Supervisor Diane Grable, and Corliss. Corliss apologized to Whidbee, and Patrick and Diane Grable told Corliss that he could not continue to make offensive comments and that he would be terminated if he did continue.

Nonetheless, Whidbee and Tranquille left McDonald's employ on June 26, 1998. They brought this action in October 1998. In November 1999, the District Court granted the defendants' motion for summary judgment.

This timely appeal followed.

DISCUSSION

At the outset, we address a threshold issue that the District Court found unnecessary to reach-whether the plaintiffs, as at-will employees, can maintain causes of action under 42 U.S.C. § 1981, which outlaws discrimination with regard to the enjoyment of all benefits, privileges, terms, and conditions of a contractual relationship.

The question whether a contract can be said to exist for § 1981 purposes between at-will employees and their employers was very recently...