Lopez v. S.B. Thomas, Inc.

Citation831 F.2d 1184
Decision Date22 October 1987
Docket NumberNo. 1017,D,1017
Parties45 Fair Empl.Prac.Cas. 140, 45 Empl. Prac. Dec. P 37,613 Cruz LOPEZ, Plaintiff-Appellant, v. S.B. THOMAS, INC., Defendant-Appellee. ocket 86-7920.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Jose A. Rivera, Brooklyn, N.Y., for plaintiff-appellant.

Richard E. Donovan, New York City (Kelley Drye & Warren, Eugene T. D'Ablemont, Cynthia A. Epstein, New York City, of counsel), for defendant-appellee.

Before LUMBARD, OAKES and CARDAMONE, Circuit Judges.

CARDAMONE, Circuit Judge:

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 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. Sec. 1981 (1982) and the Human Rights Law of the State of New York, N.Y.Exec.Law Sec. 296 (McKinney 1982 & Supp.1987), alleging that his working environment was so discriminatory and hostile that he was forced to resign. The United States District Court for 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.

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.


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' New York office.

In February, 1985 he was transferred to Thomas' 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, though 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 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 Sec. 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.

job at one of Thomas' competitors. He resigned on June 29, 1985.

I Standard of Review

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, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (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, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (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 court. See River Plate and Brazil Conferences v. Pressed Steel Car Co., Inc., 227 F.2d 60, 63 (2d Cir.1955); Radix Organization, Inc. v. Mack Trucks, Inc., 602 F.2d 45, 48 (2d Cir.1979). We analyze plaintiff's claims with these precepts in mind.

II Plaintiff's Sec. 1981 Claims

Plaintiff contends that his complaint and motion papers demonstrate genuine issues of material fact warranting a trial on the merits of two Sec. 1981 claims: constructive discriminatory discharge and a hostile work environment claim that may "stand alone as a ground for relief, as well as in support of his claim of constructive discharge." Thomas argues that the district court properly dismissed Lopez' abusive work environment claim and that Lopez did not raise the constructive discharge claim below; and, even had he raised it, Thomas asserts, it should be dismissed on appeal.

As noted, plaintiff's allegations are not set forth with crisp clarity, but instead have a somewhat indistinct and fuzzy drift. Yet, Lopez alleges in paragraph seven of his complaint that he "was constructively discharged on July 5, 1985." In paragraph two, he asserts that he "was discharged ... because of his race, color or national origin." In his Memorandum in Opposition to Defendant's Motion for Summary Judgment he states that "through hostile language, excessive criticism in day-to-day operations, performance reviews and the threat of termination after a 90-day development period, plaintiff could no longer tolerate the abuse of his supervisor and ultimately resigned." These allegations also appear in paragraph nine of the complaint. Accordingly, plaintiff sufficiently alleged a constructive discharge claim.

A. Sec. 1981 and Discriminatory Discharge

Sec. 1981 provides that: "All persons within the jurisdiction of the United States shall have the same right in every State ... to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens,...."

A plaintiff alleging that he was discharged in violation of Sec. 1981 carries the initial burden of establishing a prima facie case of discrimination by showing that (1) he belongs to a protected minority; (2) he is qualified for the position; (3) he was discharged; and (4) the discharge occurred in circumstances giving rise to an inference of racial discrimination. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253-54, n. 6, 101 S.Ct. 1089, 1093-94 n. 6, 67 L.Ed.2d 207 (1981) (Title VII); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973) (Title VII); Martin v. Citibank, N.A., 762 F.2d 212, 216-17 (2d Cir.1985) (McDonnel Douglas standard of liability applies equally to Sec. 1981 actions); Williams v. State Univ. of N.Y., 635 F.Supp. 1243, 1249 (E.D.N.Y.1986) (Sec. 1981 discriminatory discharge).

Upon making this showing, the...

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