Nicholas Malfitano Feb. 11, 2016, 10:24am


PHILADELPHIA – A federal appeals court has affirmed a verdict denying a claim of unlawful employment discrimination and hostile work environment towards a former Dollar Tree assistant manager.

On behalf of fellow judges Thomas I. Vanaskie and Patty Shwartz, Judge Kent A. Jordan upheld the ruling of the U.S. District Court for the Eastern District of Pennsylvania in dismissing the hostile work environment claim of Doreen Burgess.

Burgess was hired was hired by Dollar Tree in December 2010 and promoted to the position of assistant manager soon thereafter. In January 2012, the store brought in Randi Freeman as Burgess’ new supervisor. Burgess argues Freeman engaged in sexual harassment and religious discrimination towards her beginning in January 2012 until her termination a month later.

Specifically, Burgess alleges that Freeman refused to sell “testimonial gum” in the store and told Burgess if she wore her necklace with a cross pendant to work again, Freeman would “rip it off” her neck. Burgess alleges Freeman also made a sexual advance towards her, fired a friend of hers and finally “set her up” to get fired by telling her to arrive for work at a time when she had not been scheduled to.

Though Burgess’s initial complaint included alleged violations of Title VII of the Civil Rights Act of 1964 and the Pennsylvania Human Relations Act (PHRA) for religious and sexual orientation discrimination and retaliation against Dollar Tree, the District Court’s subsequent dismissal of those claims left Burgess’s complaint with only a retaliation claim remaining.

The District Court granted Dollar Tree summary judgment on that retaliation claim on Feb. 4, 2015, leading Burgess to appeal.

“Although Burgess brought numerous claims in the District Court, her appeal addresses only a single contention – that the District Court erred in dismissing her hostile work environment claims against Dollar Tree under Title VII and the PHRA,” Jordan said.

In order to establish a prima facie case under those claims, Burgess needed to show she “suffered intentional discrimination because of her sex; the discrimination was pervasive and regular; the discrimination detrimentally affected the plaintiff; the discrimination would detrimentally affect a reasonable person of the same sex in that position; and the existence of respondeat superior liability.”

“An unpleasant work environment is not a good thing, but it is not necessarily actionable, either,” Jordan said. “Title VII is violated only 'when the workplace is permeated with discriminatory intimidation, ridicule, and insult…that is sufficiently severe or pervasive to…create an abusive working environment.'”

Jordan explained Burgess’s allegations “do not suffice to state a plausible claim under that standard.”

“None of the facts alleged demonstrate any meaningful frequency of the conduct towards Burgess, and only two instances, Freeman’s vague sexual advance and the threat to rip Burgess’s cross from her neck, could rightly be considered physically threatening or abusive,” Jordan said.

“These two isolated instances do not represent the kind of pervasive prejudice, disparagement, and interference with one’s job functions necessary to make out a plausible hostile work environment claim,” Jordan added.

Jordan concluded the District Court ruling that Burgess failed to state a claim on which relief could be granted was “sound," and the decision to dismiss those claims was “proper.”

The appellants are represented by Matthew B. Weisberg of Weisberg Law in Morton, and Graham F. Baird of the Law Offices of Eric A. Shore, in Philadelphia.

The appellees are represented by Julie Donahue and Paul Lancaster Adams of Ogletree Deakins, also in Philadelphia.

U.S. Court of Appeals for the Third Circuit case 15-1544

U.S. District Court for the Eastern District of Pennsylvania case 2:14-cv-01727

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

More News