Jon Campisi Jun. 11, 2013, 7:31am


A federal judge in Philadelphia has dismissed a civil rights action against a Montgomery

County restaurant that had been filed by a former employee who alleged he felt compelled to leave his job because of a racist comment made by a fellow worker, and the defendant’s apparent failure to fire that person.

Lyndon Hoff, who is black, filed suit earlier this year against the Spring House Tavern, alleging racial discrimination in violation of the Civil Rights Act stemming from a 2010 incident involving a white coworker.

In his complaint, Hoff claimed that his colleague, identified as Michael Gambino, had been speaking to restaurant management and employees about vehicles that had to be relocated in the parking lot, when, after being asked by Hoff if the plaintiff’s car needed to be moved as well, Gambino responded by saying, “yes, you’re lucky, if I had my white hooded sheet on I would have taken your [expletive] truck.”

The “white hooded sheet” comment was an apparent reference to the Ku Klux Klan, a white supremacist organization.

Hoff complained to management about the comment, saying he planned to end his employment if nothing was done to address his concerns regarding racial hostility.

An owner of the restaurant, identified in the suit as Kathy Burns, first told Hoff she had terminated Gambino’s employment, but minutes later informed the plaintiff that Gambino would remain an employee, and that Hoff would have to decide whether or not he would stay at his job.

The plaintiff ultimately determined he would rather leave the job than deal with racial animosity.

Burns told Hoff that decision was his, and his alone, the complaint stated.

In a June 4 memorandum and order, U.S. District Judge R. Barclay Surrick, sitting in the Eastern District of Pennsylvania, granted a motion by the tavern to dismiss Hoff’s complaint, writing that while it appeared the plaintiff’s coworker did, in fact, make a racially insensitive remark while on the job, “it can hardly be said that this single comment was so severe and pervasive as to create a hostile work environment.”

“Because Plaintiff was dissatisfied with the lack of instant discipline enforced against his co-worker, he elected to leave the workplace,” Surrick wrote in his ruling. “Even though Plaintiff’s supervisor could have handled the matter better, Plaintiff did not really give Defendant a reasonable opportunity to remediate the situation and to improve the workplace environment. Plaintiff has not pleaded a set of facts that establish an environment where a reasonable employee would be forced to leave.”

The judge further wrote that in cases alleging violations of Title VII of the Civil Rights Act, courts have distinguished between “physical threatening or humiliating” statements from “mere offensive utterance[s],” and that in Hoff’s case, the court could not say that the Feb. 14, 2010 incident involving a brief exchange between colleagues “was so intolerable that a reasonable person in Plaintiff’s position would feel compelled to resign.”

As for Hoff’s retaliation claim, Surrick determined that Hoff was not constructively discharged when the defendant failed to fire Gambino, the coworker, and that even if Hoff was constructively terminated, he has failed to plead a causal connection between his participation in the protected activity as outlined in Title VII of the Civil Rights Act and the adverse employment action.

“Under such a theory, Plaintiff would have to plead that because he complained to a supervisor about an offensive comment, the supervisor chose not to punish that employee, and Plaintiff was constructively discharged by way of retaliation,” the judicial memorandum states. “Such an interpretation is unreasonable.”

Surrick also wrote that Hoff cannot establish that he was constructively discharged from his position since he ended up leaving the job voluntarily because he didn’t like the way his supervisor handled the racially insensitive remark made by Gambino.

Surrick similarly determined that the actions as outlined in Hoff’s complaint did not violate the Pennsylvania Human Relations Act.

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