site. Plaintiff's depo. p. 73-74. Plaintiff's injury caused three extended absences from work during which plaintiff received worker's compensation. These absences were from September 22, 1981, until June 8, 1982, November 1, 1982, until January 21, 1983, and January 18, 1984, until August 31, 1984. Plaintiff's depo. Exhibit 10. Plaintiff's return to work on each occasion was on a part time basis. Petrilli depo. p. 36, Plaintiff's depo. Exhibit 10. Plaintiff claims that Kurtz harassed her upon her return to work by continuing to assign her to the delivery runs in disregard of lifting restrictions imposed by plaintiff's physical conditions. Plaintiff's depo. p. 154. After her back injury, however, plaintiff was assigned delivery runs with a second employee. Id. Plaintiff asserts that Kurtz also changed her seat, placing her in front of the air conditioner despite medical restrictions to the contrary. Plaintiff depo. p. 201.
Again, plaintiff objected to Kurtz's supervisor, Petrilli. Her concerns were then addressed by Petrilli's supervisor and the hospital's assistant executive director who met with plaintiff. She recited her entire story. The hospital executives concluded that plaintiff's situation was due to a personality clash. Plaintiff depo. p.. 253-254.
Plaintiff cites other examples of harassment by Kurtz which transpired during her employment at West Penn. These include: Kurtz's interference with plaintiff's attempts to obtain other hospital jobs to transfer out of the department, plaintiff depo. 153-154, Kurtz's interference with plaintiff's attendance at West Penn's safety committee meetings, threats to dock her time card when she was late, disciplining her in front of other employees and not informing her that she had been selected for a displaywriter program which would have transferred plaintiff to another department. Plaintiff depo. 220. The last incident contributing to an alleged intolerable work environment happened in December 1984. Plaintiff's holiday schedule was changed, which interfered with her arrangements for a doctor's appointment and holiday party. Plaintiff made potential scheduling switches with another employee. Kurtz refused to approve of the switch. At this point, plaintiff handed in her resignation. Plaintiff depo. p. 68-71.
Thereafter, plaintiff filed numerous administrative claims and this lawsuit. Plaintiff seeks to recover money damages on the theory that her resignation was a constructive discharge based on her national origin.
The Third Circuit has held that constructive discharge in a Title VII case can be found if an "employer knowingly permitted conditions of discrimination in employment so intolerable that a reasonable person subject to them would resign." Goss v. Exxon Office Systems Co., 747 F.2d 885, 888 (3rd Cir.1984). Accordingly, to establish a prima facie case of national origin discrimination in a constructive discharge action, a plaintiff must prove (1) she belongs to a protected class; (2) she was qualified for the position she held and was performing it satisfactorily; (3) despite her qualifications she was constructively discharged; and (4) she was discharged while other employees not in her protected class were retained. Spangle v. Valley Forge Sewer Authority, 839 F.2d 171 (3rd Cir.1988) (constructive discharge in an ADEA suit); See Jalil v. Avdel Corp., 873 F.2d 701, 49 Fair Empl. Prac. Cas. (BNA) 1210 (3rd Cir. 1989) (Lexis #5915).
In this summary judgment matter defendants may prevail by showing that plaintiff will not be able to establish her prima facie case of national origin discrimination.
Spangle, 839 F.2d at 173. Defendants, in fact, contend that plaintiff is unable to establish the third element; that is, that despite her qualifications plaintiff was constructively discharged. Our focus, therefore, is on this third element
which requires that (1) the employer knowingly permit; (2) conditions of discrimination in employment; and (3) said discrimination creates an environment so intolerable that a reasonable person subject to it would resign. Goss, 747 F.2d at 885; Levendos v. Stern Entertainment, Inc., 860 F.2d 1227 (3rd Cir.1988).
Defendants contend that plaintiff is unable to establish that employment was so intolerable that a reasonable person in her place would resign. Defendants' Brief, p. 12. Since constructive discharge is usually a factual determination, we will not address the degree of oppressiveness of plaintiff's work environment and how a reasonable person would react. See Levendos, 860 F.2d at 1230. Rather, our inquiry is concentrated on whether there are discriminatory acts which could make the plaintiff's work environment intolerable.
Constructive discharge claims under Title VII require "acts of discrimination in violation of Title VII . . ." which make working conditions so intolerable that a reasonable employee would be forced to resign. Goss, 747 F.2d at 887. Hence, the discriminatory conduct must be associated in some fashion with the intolerable atmosphere leading to the constructive discharge. For this reason, there must be at least some relation between the occurrence of the discriminatory conduct and the employee's resignation. Cf. Jett v. Dallas Independent School Dist., 798 F.2d 748 (5th Cir.1986) (resignation five months after discriminatory action did not constitute intolerable conditions); Hill v. K-Mart Corp., 699 F.2d 776 (5th Cir.1983) (alleged discriminatory incidents took place long before employee's resignation); Barbetta v. Chemlawn Services Corp., 669 F. Supp. 569 (W.D.N.Y. 1987)(passage of time between discriminatory act and resignation factor to be considered). Moreover, in the context of a national origin discrimination claim the plaintiff must show more than the "mere utterance of an ethnic epithet which engenders offensive feelings in an employee . . ." Rogers v. EEOC, 454 F.2d 234, 238 (5th Cir.1972).
In the instant case, plaintiff's entire case of national origin discrimination rests on two incidents occurring within the first three years of her six year term of employment. The first incident involved an alleged derogatory utterance about plaintiff's ethnic group, a statement which was made during conversation preceding St. Patrick's Day that was not directed toward the plaintiff personally. The second incident concerned an inquiry about an object plaintiff brought to work indicating her national origin, an inquiry which in and of itself is not facially discriminatory. Such a question is not patently out of place in an employee office where discussion is easily prompted by the appearance of a new or unfamiliar hairstyle or fashion, or a new picture or other noticeable addition to one's desk.
Plaintiff cites no other instances of discriminatory conduct. Indeed, the record is devoid of any indicia that Kurtz expressed disdain for Irish nationals after these two statements despite the yearly reminder of St. Patrick's Day.
Not only is there a paucity of discriminatory conduct in this case, but there is also no connection between the alleged acts of discrimination and plaintiff's resignation. Plaintiff testified that Kurtz's alleged anti-Irish statements were made during the first three years of her employment. Yet plaintiff continued to work for another three years before resigning.
We recognize that plaintiff's work environment may have been intolerable due to her litany of other complaints. These complaints on their face, however, are not discriminatory. Nor are they latently discriminatory, as they might be in a race or sex discrimination case. Moreover, several of plaintiff's complaints cannot even form the basis for her intolerable work environment. For example, plaintiff claims that one of the conditions making her employment intolerable was the fact that Kurtz failed to inform plaintiff of her potential selection for a displaywriter program. If plaintiff did not know about this omission before her resignation, this omission could hardly contribute to an allegedly intolerable atmosphere.
Likewise, plaintiff complained that Kurtz continued to assign her to do the messenger runs despite medical restrictions. Plaintiff testified, however, that after her back injury she was assigned messenger runs with another employee. Plaintiff's reference to Kurtz's interference with plaintiff's attempts to obtain other hospital positions was based on Kurtz's cancellation of plaintiff's appointments for interviews. Again, plaintiff testified that although scheduled interviews were cancelled, she was able to reschedule them. Plaintiff depo. p. 153-154.
Plaintiff's seat placement in front of the air conditioner also allegedly contributed to plaintiff's resignation. Plaintiff's seat change however was made between October and December 1984, a period of time during which air conditioners are not used in Pittsburgh. Plaintiff depo. p. 201. Defendants should not be held accountable for the fact that the room was always cold. Id. Lastly, plaintiff's complaints regarding physical harassment in the nature of pushing or throwing things relates to the first six months of her employment. Plaintiff was unable to cite any further incidents.
Certain of plaintiff's complaints do not warrant discussion, and we hold firm to our conclusion that plaintiff's work environment was not intolerable due to acts of discrimination.
Every job has its frustrations, challenges and disappointments; these inhere in the nature of work. An employee . . . is not, however, guaranteed a working environment free of stress. The employment discrimination laws require as an absolute precondition to suit that adverse employment action have occurred. They cannot be transformed into a palliative for every workplace grievance, real or imagined, by the simple expedient of quitting.
Bristow v. Daily Press, Inc., 770 F.2d 1251 (4th Cir.1985).
We find that the two alleged acts of discrimination fail to create an atmosphere charged with discriminatory overtones towards Irish individuals which would make plaintiff's employment intolerable. We are mindful of the Third Circuit's decision in Levendos v. Stern Entertainment, Inc., in which Judge Higginbothan stated:
We cannot state as a broad proposition of law that a single non-trivial incident of discrimination can never be egregious enough to compel a reasonable person to resign.