One of the most memorable hostile-work-environment facts encountered in a recent published federal opinion: The manager – who has a history of physically threatening the plaintiff – rips off his shirt at work and tells the employee, “You don’t know who you are talking to. See these scars. I was shot and was in jail.” The Fifth Circuit reverses summary judgment in an ADEA and Title VII harassment case.
Dediol v. Best Chevrolet Inc., No. 10-30767 (5th Cir. Sept. 12, 2011): We don’t see a lot of published appellate decisions about hostile work environment based on an employee’s age or religion, but here we have a two-fer: the Fifth Circuit holds for the first time that it will recognize ADEA harassment claims, and concludes that the facts were egregious enough to support not only a claim for age (and Title VII religion) harassment, but constructive discharge to boot.
Dediol, a Christian aged 65, alleged that the used car sales manager (named Clay) routinely threatened and cursed at him in the workplace. By way of example:
1. When Dediol sought July 4, 2007 off to volunteer at a church-related event, Dediol alleges that Clay told him, “You old mother******, you are not going over there tomorrow” and “if you go over there, [I’ll] fire your f*****g ass.”
2. When Dediol arrived at work early on July 4, Clay put his shoes on Dediol’s desk and stated: “Do you see these shoes? Your God did not buy me these shoes. I bought these shoes.”
3. After that date, Clay never again referred to Dediol by his name, but instead called him names like “old mother******,” “old man,” and “pops,” up to a half-dozen times a day until the end of Dediol’s employment.
4. Hostile comments about Dediol’s religion included “go to your God and [God] would save your job;” “God would not put food on your plate;” and “[G]o to your f****ng God and see if he can save your job.”
5. “On many occasions, there were incidents of physical intimidation and/or violence between Clay and Dediol. According to Dediol, Clay would threaten him in a variety of ways, including threats that Clay was going to ‘kick [Dediol’s] ass.’ On one occasion, Clay took off his shirt, and stated to Dediol, ‘You don’t know who you are talking to. See these scars. I was shot and was in jail.'”
6. He was denied a requested transfer to sell new cars at the same dealership: “when Clay learned of Dediol’s request, Clay denied Dediol’s transfer and stated, ‘Get your old f*****g ass over here. You are not going to work with new cars.'”
7. On Dediol’s final day of work before resigning, Clay proclaimed, “I am going to beat the ‘F’ out of you,” and “charged” toward Dediol in the presence of nine to ten employees.
Although the district court held that such facts did not raise a triable issue of fact about harassment, the Fifth Circuit reverses. It holds, for the first time, that the circuit recognizes a hostile-work-environment theory for age (under the ADEA), as well as religion (under Title VII):
“A plaintiff advances such a claim by establishing that (1) he was over the age of 40; (2) the employee was subjected to harassment, either through words or actions, based on age; (3) the nature of the harassment was such that it created an objectively intimidating, hostile, or offensive work environment; and (4) there exists some basis for liability on the part of the employer.”
The panel then holds that “Clay’s repeated profane references to Dediol, and the strident age-related comments about Dediol used by Clay on almost a daily basis within the work setting, are sufficient to create a genuine issue of material fact concerning Dediol’s ADEA-based claim for hostile work environment discrimination.” Also probative, the panel holds, are the physically threatening actions. “The tenor of these comments and physical actions support the inference that the conduct was physically threatening.”
For comparable reasons, the panel also finds that the same alleged conduct by Clay supported a claim for religious harassment.
Finally, the panel finds that Clay’s conduct presented a triable issue of fact about constructive discharge:
“For example, in the eight-week span between the July 3rd incident and his resignation from Best Chevrolet, tensions escalated into a physical altercation in front of others, which precipitated Dediol’s departure from Best Chevrolet. The record illustrates a difficult-and at times volatile-relationship Dediol shared with Clay. Unhappy in the Used Cars department, Dediol sought to maintain his employment with Best Chevrolet, but in a different department. When this request was rejected, the situation erupted, eventually compelling Dediol to resign. We conclude that in this case, these allegations survive summary judgment.”
This final holding is very significant because, in contrast to Title VII – which recognizes and compensates emotional distress as an element of damages – the federal ADEA has no provision for such relief, and thus an ADEA harassment claim without a constructive discharge claim (which can be compensated with back pay) would be practically valueless.