In Mayorga v. Diet Center LLC d/b/a Heart Attack Grill, 2024 WL 1574362 (9th Cir. April 11, 2024), the court affirmed the lower court’s award of summary judgment on plaintiff’s employment discrimination claim asserted under Title VII of the Civil Rights Act of 1964.
From the decision:
Even though the First Amended Complaint (“FAC”) alleges that HAG “terminated” Mayorga, the allegations of constructive discharge are apparent on the face of the FAC. Accordingly, the district court erred by failing to recognize that Mayorga was alleging constructive discharge due to a hostile work environment and by granting summary judgment under a termination theory. Pa. State Police v. Suders, 542 U.S. 129, 139 n.5 (2004) (summarizing the appeals court’s holding that the district court erred in failing to recognize that the plaintiff had stated a claim of constructive discharge due to the hostile work environment where the allegations of constructive discharge were apparent on the face of the plaintiff’s pleading); see also Draper v. Coeur Rochester, Inc., 147 F.3d 1104, 1110 (9th Cir. 1998) (explaining that “[c]onstructive discharge is, indeed, just one form of wrongful discharge” because “[t]he fact that the actual act of terminating employment is initiated by the employee, who concludes that she is compelled to leave as a result of the employer’s actions, rather than by the employer directly does not change the fact that the employee has been discharged”).
The use of the slur was reprehensible. Even so, summary judgment was still appropriate. For a single incident of harassment to support a claim of hostile work environment, “it must be extremely severe.” Fried v. Wynn Las Vegas, LLC, 18 F.4th 643, 648 (9th Cir. 2021) (citation and internal quotation marks omitted). The conduct alleged here is neither as severe nor as pervasive as compared to other cases where an employer’s actions were deemed insufficient to create a hostile work environment. See, e.g., Kortan v. Cal. Youth Auth., 217 F.3d 1104, 1110–11 (9th Cir. 2000) (finding no hostile work environment where the supervisor referred to females as “castrating bitches,” “Madonnas,” or “Regina” in front of plaintiff on several occasions and directly called plaintiff “Medea”); Manatt v. Bank of Am., NA, 339 F.3d 792, 798–99 (9th Cir. 2003) (finding that the actions of co-workers generally fell “into the simple teasing and offhand comments category of non-actionable discrimination” and therefore no hostile work environment where co-workers mocked plaintiff for mispronouncing a word and “pulled their eyes back with their fingers in an attempt to imitate or mock the appearance of Asians” but such actions were directed at plaintiff only on a couple of occasions); Vasquez v. Cnty. of Los Angeles, 349 F.3d 634, 642–43 (9th Cir. 2003) (finding no hostile environment discrimination where the employee was told that he had “a typical Hispanic macho attitude,” that he should work in the field because “Hispanics do good in the field” and where he was yelled at in front of others).
The concluded that “[h]aving failed to sufficiently allege a hostile work environment claim, Mayorga also cannot sufficiently establish ‘the graver claim of hostile-environment constructive discharge.’”