Holmes v. American Home Patient/Lincare

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

PATRICIA HOLMES, No. 4:21-CV-01683

Plaintiff, (Chief Judge Brann)

v.

AMERICAN HOME

PATIENT/LINCARE, et al.,

Defendants.

MEMORANDUM OPINION

JULY 3, 2023

Patricia Holmes was formerly employed by American Home Patient, Inc.

(“AHP”) as a customer service representative at their State College, Pennsylvania

location, until her eventual resignation from AHP. Her employment at AHP turned

sour almost immediately after it began, as Holmes’ supervisor and a coworker at

AHP used racially derogatory slurs during Holmes’ time there.

In the two most notable incidents, Holmes’ supervisor not only used or

referenced the slurs “coon” and “nigger”—two of the most offensive words

contained in this language or any other—but directed those words toward the only

African American employee subject to his supervision, and laughed while this

occurred. These incidents, along with others, created a racially hostile work

environment and, consequently, Holmes’ claim of a hostile work environment may

proceed to trial. However, there is insufficient evidence to support her claims of

constructive discharge or retaliation, and the Court will therefore grant summary

judgment in AHP’s favor as to those claims.

I. BACKGROUND

In 2021, Holmes filed a complaint against AHP,1 alleging that it created a

hostile working environment that was permeated with racial harassment and

discrimination, in violation of 42 U.S.C. § 1981, had constructively discharged her

from her job, and retaliated against her for reporting the hostile work environment.2

Defendants filed answers to the complaint, and the matter proceeded through

discovery.3

AHP has now filed a motion for summary judgment.4 AHP first argues that it

is entitled to summary judgment as to Holmes’ constructive discharge claim because

Holmes resigned her job for personal reasons, and no reasonable juror could

conclude that her work environment was so intolerable that she was effectively

forced to resign.5 Second, AHP contends that summary judgment should be granted

in its favor with regard to Holmes’ hostile work environment claim, since AHP

promptly and appropriately responded to Holmes’ reports, and the offensive conduct

was neither severe nor pervasive.6 Finally, AHP asserts that judgment should be

1 Although the complaint identifies three different defendants, the parties agree that AHP is the

only proper defendant in this case.

2 Doc. 1.

3 Docs. 8, 9.

4 Doc. 22.

5 Doc. 24 at 4-8.

entered in its favor with respect to Holmes’ retaliation claim, as she suffered no

adverse consequences, nor was there any causal link between such alleged

consequences and Holmes’ protected activity.7

Holmes responds that there is clear evidence of racial discrimination that

created a hostile work environment, and AHP’s response to reports of that

environment was deficient.8 Holmes further asserts that there is sufficient evidence

of retaliation, as she engaged in protective activity by reporting the discrimination

and was retaliated against by her supervisor.9 Finally, Homes argues that she was

constructively discharged because her supervisor’s “aggressive and hostile

behavior” toward her following her protected activity caused Holmes to fear that

supervisor.10

AHP has filed a reply brief, rendering this matter is ripe for disposition.11 For

the following reasons, the motion for summary judgment will be granted in part and

denied in part.

7 Id. at 13-15.

8 Doc. 27 at 6-16, 18-19.

9 Id. at 16-18.

10 Id. at 21; see id. at 20-22.

II. DISCUSSION

A. Standard of Review

Under Federal Rule of Civil Procedure 56, summary judgment is appropriate

where “the movant shows that there is no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law.”12 Material facts are those “that

could alter the outcome” of the litigation, “and disputes are ‘genuine’ if evidence

exists from which a rational person could conclude that the position of the person

with the burden of proof on the disputed issue is correct.”13 A defendant “meets this

standard when there is an absence of evidence that rationally supports the plaintiff’s

case.”14 Conversely, to survive summary judgment, a plaintiff must “point to

admissible evidence that would be sufficient to show all elements of a prima facie

case under applicable substantive law.”15

The party requesting summary judgment bears the initial burden of supporting

its motion with evidence from the record.16 When the movant properly supports its

motion, the nonmoving party must then show the need for a trial by setting forth

“genuine factual issues that properly can be resolved only by a finder of fact because

they may reasonably be resolved in favor of either party.”17 The nonmoving party

12 Fed. R. Civ. P. 56(a).

13 EBC, Inc. v. Clark Bldg. Sys., Inc., 618 F.3d 253, 262 (3d Cir. 2010).

14 Clark, 9 F.3d at 326.

15 Id.

16 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

will not withstand summary judgment if all it has are “assertions, conclusory

allegations, or mere suspicions.”18 Instead, it must “identify those facts of record

which would contradict the facts identified by the movant.”19

In assessing “whether there is evidence upon which a jury can properly

proceed to find a verdict for the [nonmoving] party,”20 the Court “must view the

facts and evidence presented on the motion in the light most favorable to the

nonmoving party.”21 Moreover, “[i]f a party fails to properly support an assertion of

fact or fails to properly address another party’s assertion of fact as required by Rule

56(c),” the Court may “consider the fact undisputed for purposes of the motion.”22

Finally, although “the court need consider only the cited materials, . . . it may

consider other materials in the record.”23

B. Undisputed Facts

In 2019 and 2020, Holmes, an African American woman, was employed by

AHP as a customer service representative in its State College, Pennsylvania

location.24 During that time, Holmes’ immediate supervisor was Timothy McCoy,

18 Betts v. New Castle Youth Dev. Ctr., 621 F.3d 249, 252 (3d Cir. 2010).

19 Port Auth. of N.Y. and N.J. v. Affiliated FM Ins. Co., 311 F.3d 226, 233 (3d Cir. 2002) (internal

quotation marks omitted).

20 Liberty Lobby, 477 U.S. at 252 (quoting Schuylkill & Dauphin Imp. Co. v. Munson, 81 U.S.

442, 448 (1871)).

21 Razak v. Uber Techs., Inc., 951 F.3d 137, 144 (3d Cir. 2020).

22 Fed. R. Civ. P. 56(e)(2); see also Weitzner v. Sanofi Pasteur Inc., 909 F.3d 604, 613-14 (3d

Cir. 2018).

23 Fed. R. Civ. P. 56(c)(3).

who was the State College location’s manager.25 During her time at AHP, Holmes

was the only African American employed at the State College location, and was the

only African American employee whom McCoy had supervised.26

The first incident of overt racial harassment occurred on October 15, 2019—

just two days after Holmes began her employment with AHP.27 During a

conversation with a coworker, Beverly Hibbert, Hibbert “mentioned that her

daughter was pregnant by a deadbeat Black man and now they will be having a[n]

. . . Oreo Baby . . .”28 Hibbert apparently made reference to her granddaughter being

an “Oreo baby” on several occasions, and once said so in an attempt to defend herself

from accusations of racism after having said the “‘N’ word.”29

The second incident occurred shortly thereafter, also in October 2019. At that

time Haley Eichelberger, a respiratory therapist for AHP, administered a fit test with

Holmes.30 A fit test involves placing a white, airtight hood over an individual’s head

while that individual wears an N95 mask, then spraying a scented aerosol into the

hood to determine if the individual is properly wearing the N95 mask.31 After

Eichelberger placed the hood on Holmes, McCoy stated that it was ironic seeing “a

25 Doc. 22-2 ¶ 3.

26 Doc. 26 ¶ 59.

27 Doc. 22-4 at 34.

28 Id.

29 Doc. 26-6 at 37-38.

30 Doc. 26-5 at 3-6.

black person with a white hood over their head.”32 Eichelberger informed McCoy

that she believed his comment was “awful.”33 McCoy further asked others in the

office to videotape the fit test because “it’s funny to see a white woman putting a

hood on a Black woman’s head.”34

The next incident occurred around Thanksgiving in 2019.35 During a

conversation with Holmes, McCoy was discussing personal things when, “out of the

blue,” he mentioned “his uncle being dark complexed” and, due to that complexion,

being nicknamed “Coonie.”36 Holmes was shocked by this comment and walked

away under the pretext that she needed to answer the phone.37

On March 5, 2020, Holmes had a conversation with Hibbert and McCoy.38

McCoy initiated this conversation by telling Holmes that then President Donald

Trump “was the most discriminated against President.”39 After a brief discussion

regarding Donald Trump, McCoy inquired what Holmes thought about “[t]he use of

the ‘N’ word.”40 After Holmes stated that it was “an ugly word” that should never

be used, McCoy responded “well, the ‘N’ word does mean Black people.”41 Holmes

disputed that assertion; McCoy then stated that he would “Google it” and, after

32 Id. at 6.

33 Id. at 15.

34 Doc. 22-4 at 36.

35 Doc. 22-4 at 44-45.

36 Id. at 35.

37 Id.

38 Doc. 22-2 ¶ 19.

39 Doc. 22-4 at 46.

40 Id.

having done so, showed his phone to Holmes and said “look, see, it does mean Black

people,” although McCoy had “spelled it N-I-G-E-R.”42

Holmes informed McCoy that Niger is a country, at which time Hibbert “said,

it’s spelled with two G’s, and she said—she turned and looked at [Holmes] and she

said, no offense, Patricia, but it’s Niggerrrr.”43 During this time, both Hibbert and

McCoy were laughing.44

A coworker then yelled from her office to stop using such language, and

Holmes and the coworker went outside briefly.45 Upon returning to the office,

Hibbert asked Holmes how long Hibbert would “have to put up with” Holmes being

angry with her.46 When Holmes responded that Hibbert did not get to dictate for how

long Holmes would be upset, Hibbert began cursing.47 McCoy eventually told

Hibbert to stop but, after Holmes called Hibbert a racist, Hibbert screamed

profanities at Holmes.48 McCoy then told Hibbert to leave, but added that “Black

people use the [n] word” and he did not “care about stuff like that” because some

people call him “a Mick.”49

42 Id.

43 Id.

44 Doc. 26-6 at 64.

45 Doc. 22-4 at 47.

46 Id.

47 Id.

48 Id.

49 Id. Tammy Dunmire, one of Holmes’ coworkers at AHP, stated that she had “never heard the

word nigger used in the office other than when there was a black employee” present. Doc. 26-

The parties point to no evidence that Holmes lodged any formal complaints

about racist conduct prior to the March 2020 event. However, the day after the March

2020 incident, Holmes lodged a complaint regarding the incident with Mark

Cattron—McCoy’s immediate supervisor—and Lois Dodson, who was employed in

AHP’s human resources department.50 Dodson informed Holmes that use of the n-

word was inappropriate, and that Dodson would investigate the incident.51 Dodson

began to investigate the incident and quickly learned “that this wasn’t uncommon

behavior for” Hibbert.52

As a result of the investigation, McCoy was issued a written warning—AHP’s

second lowest level of discipline—for failing to “create and foster an environment

that is professional at all times” because he permitted Hibbert to behave in an

unprofessional manner.53 AHP made the decision to issue only a written warning to

McCoy because he

had had no prior discipline. He had been with the organization for . . .

close to 20 years. He had—you know, we had taken into consideration

malicious intent versus just poor judgment and we just didn’t feel that

there was malicious intent and felt that we could coach him and move

him along and help him improve.54

50 Doc. 22-4 at 48; Doc. 26-9 at 7-9.

51 Doc. 26-9 at 8.

52 Id. at 11.

53 Doc. 22-3 at 19-20; see Doc. 26-9 at 12-13.

AHP further issued a final written warning55 to Hibbert on March 9, 2020; the

written warning stated that it was issued because Hibbert used “a racial slur in

conversation, making others extremely uncomfortable.”56 After Hibbert was issued

a final written warning, she placed tape over her mouth, stating that it was “the only

way she didn’t say anything to get in further trouble.”57 Holmes complained of this

incident, and Hibbert was then fired from AHP because the use of tape over her

mouth “perpetuat[ed] the entire situation” and did “not align with [AHP’s]

principles.”58

During the incident with the tape, Holmes refused to sit near Hibbert at a

meeting.59 McCoy then verbally reprimanded Holmes for not sitting next to Hibbert,

despite the fact that Holmes was not required to sit next to Hibbert.60 After this

conversation, Holmes asked whether she would be issued a written warning, to

which McCoy became upset and responded “are you trying to cause a problem”61

and “is [it] your intention to get [Hibbert] fired?”62

McCoy allegedly became verbally and physically aggressive toward Holmes

in June and July of 2020 and, on July 7, 2020, McCoy twice “aggressively snatched”

55 A final written warning is AHP’s third level of discipline, with termination being the final level

of discipline issued. Doc. 26-9 at 13, 15-16.

56 Doc. 22-3 at 8-9.

57 Doc. 26-9 at 18-19.

58 Doc. 22-3 at 17.

59 Doc. 22-4 at 48-49.

60 Id. at 49.

61 Id.

papers from Holmes’ hands.63 On the same day, Holmes submitted her letter of

resignation to AHP. Holmes provided eleven reasons for her resignation:

1. “Hostility/ Bullying (paperwork snatched out of my hands twice this

morning by center manager)”

2. “Embarrassment during morning meetings spoke to condescendingly”

3. “No insurance never received notice to sign up, I called benefits twice

in January 2020 never received a call back, I can’t afford my medicine,

or needed doctor appointments”

4. “In debt collections because of TB testing done for my employment

10/19/2019, I’ve been billed personally and paid but still sent to

collections”

5. “Being denied training for new programs such as Care Orchestrator, I

was told I needed to answer phones”

6. “Reprimanded for asking a question during Parachute Training

6/25/2020”

7. “Orders that I’m working on is giving to Lewistown, (I stated that if

I’m not afforded the opportunity to complete my work then I won’t

learn) and previously told, ‘if you don’t like how the person(s) in

Lewistown speak to you then do your own work’”

8. “I’ve have told center manager since I started that work such as CPAPS,

Overnight Pulse Ox are hoarded by other employees that has refused to

let me help and train but I’m still held to the same accountability for

that work not being done [] which leads to the embarrassment in

morning meetings”

9. “Previously told that the work I do is ‘menial’”

10. “When Co-workers or myself would try to address issues of the morale

in the office we were told . . . ‘I’m tired of your bitching; you need to

be thick-skinned’”

11. “Previous rude comments of racial/political nature [] I did speak with

area manager and human resources regarding.”64

Other employees reported that the environment at the State College location

was difficult. Tammy Dunmire resigned from AHP due to McCoy’s behavior and

because he permitted the inappropriate behavior of others to continue.65 McCoy

would allegedly slam doors, throw pens, once “picked up a chair and threw it across

the room,” and “would just degrade” employees.66 The environment led Dunmire to

feel “so miserable[] that [she was] crying all the time.”67 Eichelberger testified that

the time period during which Holmes alleges she was experiencing racial harassment

was “honestly horrible” and explained that it “was just so awful at that time period

to come to work.”68

C. Analysis

1. Racial Harassment Claims

The Court first addresses Holmes’ claims of racial harassment. Holmes raises

two distinct claims under 42 U.S.C. § 1981: a claim related to an allegedly hostile

work environment, and a claim alleging constructive discharge.69 The Court will

analyze each claim in turn.

64 Doc. 22-4 at 80.

65 Doc. 22-7 at 18.

66 Id. at 4.

67 Id. at 18.

68 Doc. 26-5 at 16-17.

69 In response to AHP’s motion for summary judgment, Holmes cites to the legal standard applied

a. Hostile Work Environment

AHP argues that Holmes’ hostile work environment claim fails because (1)

she cannot demonstrate that AHP is liable for Hibbert’s conduct under the theory of

respondeat superior, and (2) the conduct to which Holmes was exposed was neither

severe nor pervasive.70

Holmes brings her claims pursuant to 42 U.S.C. § 1981 but, “[i]n employment

discrimination cases, these claims are subject to the same analysis as discrimination

claims under Title VII of the Civil Rights Act of 1964.”71 “Accordingly, a court

reviews them under the burden-shifting framework outlined in McDonnell Douglas

Corp. v Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L.Ed.2d 668 (1973).”72

Under that framework, a plaintiff first must establish the requisite

elements of his claim (called the prima facie elements); if so, the

“burden then must shift to the employer to articulate some legitimate,

nondiscriminatory reason” for the adverse employment action, and then

the plaintiff bears the burden of establishing that the employer’s stated

reason for the adverse action was an excuse, or pretext, for why the

action was actually taken.73

at 6-8. However, Holmes’ complaint clearly alleges a hostile work environment, not disparate

treatment. See, e.g., Doc. 1 at 4 (“Plaintiff was subjected to intention harassment, a hostile

working environment, and discrimination during her employment because of her race”

(emphasis added)). And it is well established that “‘[a] plaintiff may not amend his complaint

through arguments in his brief in opposition to a motion for summary judgment.’” Harmon v.

Sussex Cnty., 810 F. App’x 139, 142 (3d Cir. 2020) (quoting Shanahan v. City of Chicago, 82

F.3d 776, 781 (7th Cir. 1996)). The Court therefore will not consider whether Holmes has

satisfied the requirements for a disparate treatment claim.

70 Doc. 24 at 8-13.

71 Castleberry v. STI Grp., 863 F.3d 259, 263 (3d Cir. 2017).

72 Id.

To establish a prima facie case of a hostile work environment, a plaintiff must

demonstrate “1) the employee suffered intentional discrimination because of his/her

[race], 2) the discrimination was severe or pervasive, 3) the discrimination

detrimentally affected the plaintiff, 4) the discrimination would detrimentally affect

a reasonable person in like circumstances, and 5) the existence of respondeat

superior liability . . .”74

Judged under that standard, the Court concludes that Holmes’ hostile work

environment claim survives summary judgment. AHP does not contest that Holmes

suffered intentional discrimination because of her race, that the discrimination

detrimentally affected her, or that the discrimination would detrimentally affect a

reasonable person in like circumstances.75 Rather, it contests the existence of

respondeat superior liability as to Hibbert, since Hibbert was only a coworker of

Holmes, and AHP argues that it responded properly to Holmes’ complaints.76 It

further contests that any conduct satisfies the pervasive or severe standard.77

i. Respondeat Superior

As to whether there exists a basis for respondeat superior liability with respect

to Hibbert’s conduct, the United States Court of Appeals for the Third Circuit has

explained that “when the hostile work environment is created by non-supervisory

74 Id.

75 See Doc. 24. And even if AHP did contest these elements of a prima facie case, the Court

would conclude that, for summary judgment purposes, those elements are easily satisfied.

76 Id. at 9-10.

coworkers, employers are not automatically liable in all instances.”78 “Rather,

employer liability exists only if (1) the employer failed to provide a reasonable

avenue for complaint or (2) the employer knew or should have known of the

harassment and failed to take prompt and appropriate remedial action.”79

“[A]n employer knew or should have known about workplace [racial]

harassment if management-level employees had actual or constructive knowledge

about the existence of a [racially] hostile environment.”80 The Third Circuit has “also

recognized that management level employees have constructive notice of a hostile

work environment when an employee provides management level personnel with

enough information to raise a probability of [racial] harassment in the mind of a

reasonable employer.”81

Hibbert was directly involved in at least two incidents: the incident where

Hibbert referred to her granddaughter as an “Oreo baby,” and the second where she

clearly and slowly enunciated the “n-word.” A reasonable juror may infer that

McCoy was aware of the first incident, as there is evidence that all employees at

AHP’s State College location were present when Hibbert stated that her

granddaughter was an “Oreo baby,” which would include McCoy.82 And it is beyond

78 In re Trib. Media Co., 902 F.3d 384, 400 (3d Cir. 2018) (brackets, ellipsis, and internal

quotation marks omitted).

79 Id. (brackets, ellipsis, and internal quotation marks omitted).

80 Huston v. Procter & Gamble Paper Prod. Corp., 568 F.3d 100, 105 (3d Cir. 2009) (internal

quotation marks omitted).

81 Id. (internal quotation marks omitted).

peradventure that McCoy qualifies as a management-level employee, as he was the

“Center Manager” for the State College location and “also managed the office in

Lewistown.”83 Further, there is no evidence that McCoy or AHP took “prompt and

appropriate remedial action”84 after that incident. This incident may therefore be

considered in determining whether Holmes was subjected to a hostile work

environment.

The later incident involving a racial slur occurred in McCoy’s presence—

indeed, it was instigated by McCoy and his bizarre attempt to prove that the “n-

word” is a word that refers to African Americans.85 AHP management was therefore

aware of this incident. Consequently, the only question is whether AHP took prompt

and appropriate remedial action against Hibbert, which includes actions that are

“reasonably calculated to end the harassment.”86 After Hibbert used racial slurs in

Holmes’ presence, Hibbert was issued a final written warning—one step below

termination from AHP in the order of discipline.87

There is little doubt that this disciplinary action was taken promptly, occurring

the following business day after the incident was reported to human resources.

Moreover, the Court concludes that a reasonable juror could not determine that

AHP’s actions were not reasonably calculated to end the harassment. Hibbert’s

83 Doc. 22-2 ¶ 3.

84 In re Trib. Media Co., 902 F.3d at 400.

85 Doc. 22-4 at 46.

86 Andreoli v. Gates, 482 F.3d 641, 644 (3d Cir. 2007) (internal quotation marks omitted).

actions were highly offensive and inexcusable,88 but AHP issued a final written

warning, which placed Hibbert on notice that further such conduct could result in

her termination. This warning unfortunately did not dissuade Hibbert from

additional offensive conduct—she then placed tape over her mouth to protest her

discipline—but it was reasonably calculated to end any harassment.89 Hibbert’s

employment with AHP was then promptly terminated,90 and there is no question that

such action stopped the harassment and was therefore “adequate as a matter of

law.”91 Because AHP responded appropriately to Hibbert’s behavior in March 2020,

her actions cannot be imputed to AHP and cannot form part of a hostile work

environment.

ii. Severe or Pervasive

The Court turns then to the question of whether McCoy’s actions—which

AHP does not dispute forms the basis of respondeat superior liability92—combined

88 These actions apparently were not an isolated incident for Hibbert, who had an unfortunate

history of such behavior. Doc. 26-9 at 11. However, there is no evidence that AHP’s human

resources department was aware of this behavior prior to launching its investigation into the

March 2020 incident.

89 Doc. 26-9 at 18-19.

90 Doc. 22-3 at 17

91 Andreoli, 482 F.3d at 644 n.2.

92 Even if AHP challenged whether McCoy’s acts may be imputed to it, any such challenge would

fail on the evidence presented here. The Supreme Court of the United States has held that

plaintiffs may “hold an employer vicariously liable for some tortious conduct of a supervisor

made possible by abuse of his supervisory authority.” Faragher v. City of Boca Raton, 524

U.S. 775, 802 (1998). Automatic liability is attached in such circumstances, subject to “an

affirmative defense to liability that the employer had exercised reasonable care to avoid

harassment and to eliminate it when it might occur, and that the complaining employee had

failed to act with like reasonable care to take advantage of the employer’s safeguards and

otherwise to prevent harm that could have been avoided.” Id. at 805. No evidence to support

with Hibbert’s statement in October 2019, are sufficiently severe or pervasive. The

Court concludes that they are.

McCoy’s inappropriate conduct toward Holmes began almost immediately

after she was hired by AHP in October 2019. During a fit test that month wherein an

employee placed a white hood over Holmes’ head, McCoy laughed and asked others

to videotape the test because “it’s funny to see a white woman putting a hood on a

Black woman’s head.”93 The following month, McCoy mentioned to Holmes that

his uncle had a dark complexion and, therefore, he and his family nicknamed that

uncle “Coonie”94 which a reasonable juror could conclude—given the context of the

statement—is a variation of the racial slur “coon.”

These incidents, along with the incident involving Hibbert in October 2019,

may be viewed as inappropriate and unfortunate statements made by McCoy without

knowledge of the gravity and impact that his words may carry with his employees.

However, the final incident was significantly more serious.

That incident, which occurred in March 2020, involved McCoy asking

Holmes what she thought about “[t]he use of the ‘N’ word.”95 After Holmes stated

that it was “an ugly word” that should never be used, McCoy responded “well, the

‘N’ word does mean Black people.”96 Holmes disputed that assertion; McCoy then,

93 Doc. 22-4 at 36.

94 Id. at 35.

95 Id. at 46.

incredulously, stated that he would “Google it,” showed the results to Holmes, and

stated “look, see, it does mean Black people,” although McCoy had accidentally

“spelled it N-I-G-E-R.”97 This misspelling led Hibbert to inform McCoy that slur he

had intended to write was spelled with two g’s before enunciating that word.98

During this incident, McCoy was, shockingly, laughing.99 Later McCoy stated that

“Black people use the [n] word” and he did not “care about stuff like that” because

some people call him “a Mick.”100

While this presents a close question, the Court concludes that the March 2020

incident alone is sufficiently severe to satisfy Holmes’ burden of proof.101 The Third

Circuit has explained that “it is clear that one such instance [of the use of the n-word

in the workplace] can suffice to state a claim” for a hostile work environment,

“[a]lthough the resolution of that question is context-specific.”102 Courts have noted

that “no single act can more quickly alter the conditions of employment and create

an abusive working environment than the use of an unambiguously racial epithet

such as the “n-word” by a supervisor in the presence of his subordinates.”103

However, a plaintiff must still demonstrate that that the incident was “‘extreme to

97 Id.

98 Id.

99 Doc. 26-6 at 64.

100 Doc. 22-4 at 47

101 Although this incident alone is sufficient to establish severe conduct, it is important to note

that this was not one-off conduct. Rather, the March 2020 incident was the culmination of four

racially charged episodes that occurred over the span of approximately five months.

102 Castleberry, 863 F.3d at 264.

103 Id. at 265 (quoting Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668, 675 (7th Cir. 1993)

amount to a change in the terms and conditions of employment’ for it to serve as the

basis of a harassment claim.”104

The question of “whether an environment is sufficiently hostile or

abusive must be judged by looking at all the circumstances, including

the frequency of the discriminatory conduct; its severity; whether it is

physically threatening or humiliating, or a mere offensive utterance;

and whether it unreasonably interferes with an employee’s work

performance.”105

Here, Holmes’ direct supervisor, who was also the supervisor for the entire

State College branch, made reference to a deeply offensive word and asked the only

black employee what she thought of that word. He then stated that the word referred

to black individuals, attempted to look the word up online, and showed the search

results to his black employee. During this time, and while another of McCoy’s

subordinates enunciated the slur, McCoy laughed. That conduct is shocking. And

that it was delivered by Holmes’ supervisor makes the conduct all the more extreme

since, as the Supreme Court has recognized “acts of supervisors have greater power

to alter the environment than acts of coemployees generally.”106

This conduct had a direct impact on Holmes and her working environment.

Holmes had to immediately leave the office and “take a walk outside” because she

was upset.107 Anger and resentment between Holmes and Hibbert over the incident

104 Id. at 264 (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998)).

105 Moody v. Atl. City Bd. of Educ., 870 F.3d 206, 215 (3d Cir. 2017) (quoting Clark Cty. Sch.

Dist. v. Breeden, 532 U.S. 268, 270-71 (2001)).

106 Faragher, 524 U.S. at 805.

led to a dispute shortly thereafter, which ended with Hibbert screaming curse words

at Holmes.108 Holmes then appears to have studiously avoided Hibbert and attempted

to sit far away from Hibbert in a meeting.109 Holmes obviously could not have

avoided her supervisor, McCoy, and, for her efforts to avoid Hibbert, Holmes was

verbally reprimanded by McCoy.110 The incident was undoubtedly humiliating and

interfered with Holmes’ work, and therefore meets the severity required to

demonstrate a hostile work environment.111

Moreover, although not legally dispositive, AHP’s response to McCoy’s

actions could be viewed by a jury as markedly deficient. McCoy had a history of

making, to put it generously, racially insensitive remarks to his only black employee

and, at a minimum, condoned racist statements and behavior from Hibbert, who had

a pattern of offensive behavior.112 Despite McCoy’s behavior over a period of

108 Id.

109 Id. at 48-49.

110 Id.

111 Cf. Castleberry, 863 F.3d at 262, 265 (concluding that incident was sufficiently severe to state

a claim for a hostile work environment where “a supervisor told Castleberry and his coworkers

that if they had ‘nigger-rigged’ the fence, they would be fired”); Kengerski v. Harper, 6 F.4th

531, 539-40 (3d Cir. 2021) (citing with approval out-of-circuit case holding “that even two

uses of [the term ‘monkey’], viewed as a single incident of harassment, could be found by a

reasonable jury to be ‘severe enough to engender a hostile work environment’” (quoting Boyer-

Liberto v. Fontainebleau Corp., 786 F.3d 264, 280 (4th Cir. 2015)); L. L. v. Evesham Twp. Bd.

of Educ., 710 F. App’x 545, 549 (3d Cir. 2017) (holding that student’s claim for a hostile

school environment must survive summary judgment as “plaintiffs adduced sufficient evidence

to establish a prima facie case of hostile environment as to KLJR, who was present when the

‘n-word’ was uttered”).

112 During the March 2020 incident where Hibbert enunciated “Niggerrrr,” Doc. 22-4 at 46,

McCoy was laughing. Doc. 26-6 at 64. And McCoy did not discipline Hibbert for using that

slur; rather, he verbally reprimanded Hibbert only when she later began ranting, cursing, and

yelling “fuck you” to Holmes. Doc. 22-4 at 47. This reaction could reasonably be viewed as

months, AHP issued only a written warning—one of the mildest forms of discipline

that AHP could impose—and this was not in response to McCoy’s racially

insensitive behavior but, rather, was in response to McCoy having permitted Hibbert

to behave in an unprofessional manner.113

A reasonable juror could also view as disingenuous AHP’s reasons for issuing

such mild discipline. AHP explained that it issued milder discipline because, inter

alia, “we just didn’t feel that there was malicious intent and felt that we could coach

him and move him along and help him improve.”114 But McCoy was laughing as his

employee was humiliated with the use of one of the most offensive racial slurs

contained in the English language, and could even be viewed as having encouraged

the use of that slur. A jury could conclude that no reasonable person would view this

behavior as anything other than malicious, and that AHP simply chose to ignore the

severity of McCoy’s conduct.

In sum, Holmes has adequately demonstrated that the behavior to which she

was subjected was severe or pervasive, and has therefore established a prima facie

case of a hostile work environment. Because AHP does not argue that there was a

legitimate, non-discriminatory reason for the conduct to which Holmes was

subjected, her claim should be evaluated by a jury, and AHP’s motion for summary

judgment will be denied with respect to that claim.

113 Doc. 22-3 at 19-20; see Doc. 26-9 at 12-13.

b. Constructive Discharge

Next, AHP asserts that it is entitled to summary judgment on Holmes’

constructive discharge claim.115 Specifically, AHP contends that Holmes resigned

for personal reasons116 and, in any event, her workplace environment was not so

intolerable that Holmes was in effect forced to resign.117 Holmes responds that she

resigned because McCoy engaged in hostile and aggressive behavior, causing her to

fear McCoy which, according to Holmes, is sufficient to establish a claim for

constructive discharge.118

“To establish a constructive discharge, [a plaintiff] must show that the

employer knowingly permitted conditions of discrimination in employment so

intolerable that a reasonable person subject to them would resign.”119 Courts

“employ an objective test and thus an employee’s subjective perceptions of

unfairness or harshness do not govern a claim of constructive discharge.”120 Notably,

“[t]o prove constructive discharge, the plaintiff must demonstrate a greater severity

or pervasiveness of harassment than the minimum required to prove a hostile

working environment.”121 This is so because “a hostile-work-environment claim is

115 Doc. 24 at 4-8.

116 Id. at 4-5. The facts upon which AHP relies for this contention are contested and, as such, the

Court will not resolve Holmes’ claim on that basis. See Doc. 27 at 21.

117 Id. at 5-8.

118 Doc. 27 at 20-22.

119 Mandel v. M & Q Packaging Corp., 706 F.3d 157, 169 (3d Cir. 2013) (internal quotation marks

omitted).

120 Id.

121 Spencer v. Wal-Mart Stores, Inc., 469 F.3d 311, 316 n.4 (3d Cir. 2006) (internal quotation

a ‘lesser included component’ of the ‘graver claim of hostile-environment

constructive discharge.’”122

In determining whether an employee was forced to resign, [courts]

consider a number of factors, including whether the employee was

threatened with discharge, encouraged to resign, demoted, subject to

reduced pay or benefits, involuntarily transferred to a less desirable

position, subject to altered job responsibilities, or given unsatisfactory

job evaluations.123

Here, no evidence has been submitted to the Court that would satisfy any of

the factors proffered by the Third Circuit. Holmes was not forced to resign,

encouraged to resign, demoted, transferred, subject to reduced pay or benefits, given

altered job responsibilities, or given unsatisfactory job evaluations.

To be sure, Holmes alleges, and the evidence bears out, that she was subjected

to a hostile work environment. But proving that Holmes was subjected to a hostile

working environment simply is not sufficient to establish a constructive discharge

claim.124 Moreover, the environment to which Holmes was subjected was not so

intolerable as to effectively force her or a reasonable person in her position to resign.

The last incident of racial harassment occurred in March 2020, and Holmes did not

resign until July 2020.125 This interregnum of nearly four months demonstrates that

122 Green v. Brennan, 578 U.S. 547, 559 (2016) (quoting Pa. State Police v. Suders, 542 U.S. 129,

149 (2004)).

123 Mandel, 706 F.3d at 169-70.

124 Spencer, 469 F.3d at 316 n.4.

any racial harassment alone was not sufficient to result in Holmes’ constructive

discharge.

The remaining evidence of Holmes’ claim of constructive discharge is that,

over a four-month period: (1) she was reprimanded for not sitting next to Hibbert in

a meeting; (2) McCoy yelled at Holmes and another employee and told them that

they were being too sensitive and needed to stop their “bitching”; (3) McCoy

snatched papers from Holmes’ hands on two occasions; and (4) McCoy told Holmes

that her work was menial.126 These incidents, although perhaps discomforting,

demonstrative of poor leadership, and not conducive to a positive work environment,

are simply insufficient to conclude that any reasonable person would feel compelled

to resign from AHP, particularly given the absence of any of the factors that the

Third Circuit has listed as being indicative of constructive discharge. And while

Holmes has asserted her subjective fear of McCoy, her subjective fear, without an

explanation of any underlying facts that may have given rise to that fear, cannot

establish constructive discharge.127 Accordingly, the Court will grant AHP’s motion

for summary judgment as to Holmes’ claim of constructive discharge, and will grant

judgment in AHP’s favor.

126 Doc. 27 at 21-22 (citing Doc. 26 ¶¶ 41, 43, 53, 65, 68, 75-77, 79, 86-88, 91-92, 99, 104, 126.

2. Retaliation Claim

Finally, the Court turns to Holmes’ claim of retaliation. AHP asserts that

Holmes suffered no materially adverse consequences after filing complaints, and

cannot connect any alleged materially adverse consequences to the filing of a

complaint.128 Holmes responds that the animosity demonstrated toward her by

McCoy, combined with the timing of that animosity, sufficiently establishes

retaliation.129

“Retaliation claims are cognizable under . . . § 1981” and are governed by the

McDonnell Douglas burden shifting framework outlined previously in this

Memorandum.130

Under the first step of that framework, a plaintiff must establish a prima

facie case by showing (1) that she engaged in protected employee

activity; (2) adverse action by the employer either after or

contemporaneous with the employee’s protected activity; and (3) a

causal connection between the employee’s protected activity and the

employer’s adverse action.131

AHP does not dispute that Holmes engaged in protected activity when she

reported the racial abuse that she had experienced to a human resources

representative at AHP. The Court therefore only need analyze whether material

128 Doc. 24 at 13-15.

129 Doc. 27 at 16-18.

130 Canada v. Samuel Grossi & Sons, Inc., 49 F.4th 340, 346 (3d Cir. 2022).

131 Id. (brackets and internal quotation marks omitted). AHP argues solely that Holmes has not

satisfied her burden of establishing a prima facie case of retaliation, and therefore has not

availed itself of the opportunity to argue that any adverse action was taken for a legitimate,

non-retaliatory reason. Doc. 24 at 13-15. The Court therefore will not analyze the second and

third steps of the McDonnell Douglas framework. See Canada, 49 F.4th at 346 (detailing

adverse actions were taken against Holmes, and whether there was a causal

connection between her protected activity and such actions.

To demonstrate that she experienced materially adverse actions, Holmes

“‘must show that a reasonable employee would have found the challenged action

materially adverse, which in this context means it well might have dissuaded a

reasonable worker from making or supporting a’” complaint.132 Courts must

“examine the challenged conduct ‘from the perspective of a reasonable person in the

plaintiff’s position, considering ‘all the circumstances.’”133 “‘Petty slights, minor

annoyances, and simple lack of good manners’ generally will not suffice”134

“However, ‘context matters’ such that ‘an act that would be immaterial in some

situations is material in others.’”135

Holmes alleges that she experienced several adverse actions: (1) McCoy twice

snatched papers from Holmes’ hands; (2) McCoy yelled at Holmes and another

employee and told them that they were being too sensitive and needed to stop their

“bitching”; (3) McCoy informed Holmes that she could file complaints against him,

but he would not be fired or go to jail over any complaints; (4) McCoy told Holmes

132 Daniels v. Sch. Dist. of Phila., 776 F.3d 181, 195 (3d Cir. 2015) (quoting Burlington N. &

Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)).

133 Id. (quoting Burlington N. & Santa Fe Ry. Co., 548 U.S. at 71).

134 Id. at 196 (quoting Burlington N. & Santa Fe Ry. Co., 548 U.S. at 71 (brackets omitted)).

that her work is menial; (5) Holmes was reprimanded for not sitting next to Hibbert

in a meeting; and (6) Holmes was denied certain training.136

Of these activities, the denial of training may “constitute retaliation where the

training ‘contributes significantly to the employee’s professional advancement.’”137

Although Holmes asserts that she was denied training,138 the evidence establishes

that, on July 6, 2020, AHP was attempting to schedule Holmes’ training session.139

However, Holmes resigned from AHP on July 7, 2020, before the training was

scheduled.140 Holmes therefore did not receive that training not as a result of

retaliation, but as a result of Holmes’ resignation. The remainder of the incidents to

which Holmes’ cites—being reprimanded once, yelled at once, having papers twice

snatched from her hands, being told that complaints would not get her supervisor

fired, and being told her work was menial, do not rise above the level of petty slights,

minor annoyances, and simple lack of good manners that cannot sustain a claim of

retaliation.141

136 Doc. 27 at 18 (citing Doc. 26 ¶¶ 75-77, 79, 86-88, 91-93, 99-100, 125-126). The Court finds

for the purposes of summary judgment that there is a causal link between these activities and

Holmes’ complaints to human resources, as these activities began immediately after Holmes

made her report and continued until the day of Holmes’ resignation. See Carvalho-Grevious v.

Del. State Univ., 851 F.3d 249, 260 (3d Cir. 2017) (noting that a plaintiff may establish

causation by demonstrating “temporal proximity unusually suggestive of retaliatory motive”

(internal quotation marks omitted)).

137 Boykins v. SEPTA, 722 F. App’x 148, 160 (3d Cir. 2018) (quoting Burlington N. & Santa Fe

Ry. Co., 548 U.S. at 69).

138 Doc. 26-1 at 17-23.

139 Doc. 28 at 9.

140 Doc. 22-4 at 80.

Because Holmes suffered no materially adverse consequences after reporting

racial harassment to human resources, she has failed to demonstrate a prima facie

case of retaliation. The Court will therefore grant summary judgment in AHP’s favor

for this count.

III. CONCLUSION

For the foregoing reasons, the Court will grant in part and deny in part AHP’s

motion for summary judgment.

An appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann

Matthew W. Brann

Chief United States District Judge