In Douse v. Walmart, No. 24-cv-2541, 2024 WL 3744357 (E.D.Pa. August 9, 2024), the court denied defendant’s motion to dismiss plaintiff’s age- and race-based claims of constructive discharge and hostile work environment asserted under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act (ADEA).
As to plaintiff’s discrimination/constructive discharge claims, the court explained:
Douse alleges that she was discriminated against on the basis of her race and age. She also appears to allege a hostile work environment claim. In general, to plead a prima facie case of employment discrimination, a plaintiff must allege that: (1) she is a member of a protected class; (2) she was qualified for the position in question; (3) she suffered an adverse employment action, and; (4) the adverse action occurred under circumstances giving rise to an inference of discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); see also Sarullo v. U.S. Postal Serv., 352 F.3d 789, 797 (3d Cir. 2003). Membership in a protected class for purposes of age discrimination claims under the ADEA means that the plaintiff is over forty years old. Willis v. UPMC Children’s Hosp. of Pittsburgh, 808 F.3d 638, 644 (3d Cir. 2015) (citing Burton v. Teleflex Inc., 707 F.3d 417, 426 (3d Cir. 2013)). Although it is not necessary for a plaintiff to allege a prima facie case at the pleading stage, a plaintiff still must allege sufficient facts to raise a reasonable expectation that discovery will reveal evidence that his membership in a protected class was “either a motivating or determinative factor” in his employer’s adverse employment action against him. Connelly v. Lane Constr. Corp., 809 F.3d 780, 789 (3d Cir. 2016).
The first two elements are sufficiently alleged. Douse states that she is a member of a protected class – African American and sixty-one years old – and that that she was qualified for her position. For an adverse employment action, the Court understands Douse to allege that her resignation constitutes a constructive discharge. An adverse employment action may be shown with allegations that the plaintiff was constructively discharged. Larochelle v. Wilmac Corp., 769 F. App’x 57, 61 (3d Cir. 2019); Gunn v. On the Border Acquisitions, LLC, 298 F. Supp. 3d 811, 823 (E.D. Pa. 2018). To state a claim for constructive discharge, a plaintiff must allege that “the employer knowingly permitted conditions of discrimination in the workplace ‘so intolerable that a reasonable employee would be forced to resign.’ ” Seeney v. Elwyn, Inc., 409 F. App’x 570, 573 (3d Cir. 2011) (per curiam) (quoting Levendos v. Stern Entertainment, Inc., 860 F.2d 1227, 1230 (3d Cir. 1988)). Courts consider various factors in determining whether an employee was forced to resign, including whether she: (1) was threatened with discharge; (2) was encouraged to resign; (3) was demoted or suffered a reduction in pay or benefits; (4) was involuntarily transferred to a less desirable position; (5) had job responsibilities altered; and (6) began receiving unsatisfactory job evaluations. See id.; see also Colwell v. Rite Aid Corp., 602 F.3d 495, 502 (3d Cir. 2010). Under certain circumstances, unequal treatment can substantiate a discrimination claim based on constructive discharge. See Fritz v. Allied Servs. Found., No. 21-1996, 2024 WL 843918, at *6 (M.D. Pa. Feb. 28, 2024).
Liberally construing the Amended Complaint, Douse’s allegations support a plausible inference that she was constructively discharged because the conditions of her employment had become intolerable. She alleged that she received unequal treatment on the basis of her race and age. Specifically, Douse alleges that she was not permitted to keep personal items at her workstation when other non-minority younger employees were. In addition, she alleges that she was excluded from participating in the Black Friday kickoff event because she was provided a t-shirt that would not fit her while other non-minority employees could participate with a properly sized t-shirt. See Fritz, 2024 WL 843918, at *6 (denying motion to dismiss disability discrimination claim where the plaintiff alleged that she was constructively discharged after receiving unequal treatment because her son had disabilities). Moreover, resolving all inferences in Douse’s favor, the Amended Complaint could be read to infer that Walmart’s refusal to allow her to work at the self-checkout line and refusal to remove cash from her register was rooted in discrimination on the basis of age and race. Douse has adequately alleged Title VII and ADEA discrimination claims.
The court likewise held that plaintiff sufficiently alleged a hostile work environment:
Similarly, the allegations supporting the inference of a discrimination claim also support a plausible hostile work environment claim. To plead a hostile work environment claim, a plaintiff must allege: (1) she suffered intentional discrimination because of membership in a protected class; (2) the discrimination was severe or pervasive; (3) the discrimination detrimentally affected her; (4) it would have detrimentally affected a reasonable person in like circumstances; and (5) a basis for employer liability is present. Starnes v. Butler Cnty. Ct. of Common Pleas, 50th Jud. Dist., 971 F.3d 416, 428 (3d Cir. 2020) (alterations, internal quotations, and citations omitted); Felder v. Penn Mfg. Indus., Inc., 303 F.R.D. 241, 243 (E.D. Pa. 2014). As noted above, Douse has adequately pled for purposes of screening that she suffered intentional discrimination on the basis of her race and age. Despite numerous complaints, Walmart did not respond to her concerns. The alleged discrimination ultimately caused her to resign.
The court thus concluded that, “[s]imilar to the facts alleged supporting her constructive discharge claim, Douse has also adequately alleged a hostile work environment claim.”