NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
_____________
No. 22-3235 _____________
WANDREA RUSSO, Appellant
v.
THE BRYN MAWR TRUST COMPANY _____________
On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2:19-cv-02408) District Judge: Honorable Berle M. Schiller
Submitted Under Third Circuit L.A.R. 34.1(a): December 15, 2023
Before: BIBAS, PORTER and FISHER, Circuit Judges.
(Opinion filed: August 9, 2024) _________
OPINION* _________
* This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. PORTER, Circuit Judge. In April 2018, Wandrea Russo, a teller at the Bryn Mawr Trust Company bank
(“BMT”), filed a discrimination complaint against BMT with the Equal Employment
Opportunity Commission (“EEOC”) and the Pennsylvania Human Rights Commission
(“PHRC”). On May 23, 2019, Russo resigned from BMT claiming that she was
constructively discharged. Russo then filed suit, alleging racial discrimination, retaliation,
and a hostile work environment. The District Court granted BMT’s motion for summary
judgment. We will affirm.
I
Russo’s supervisor at BMT’s Bryn Mawr branch between 2015 and June 2018 was
Therese Trainer, who is white. Russo, who is black, alleges that Trainer harassed and
racially discriminated against her. Russo’s allegations concerning Trainer fall into three
categories: making inappropriate comments about black people to Russo, or in Russo’s
presence; making hostile comments or taking actions which were not expressly racial, but
which Russo interpreted as racially discriminatory; and engaging in unpleasant work-
related conduct. Most of the expressly racial comments or incidents occurred between
2016 and the summer of 2017, plus one racial comment in February 2018.1
1 The dates of Trainer’s allegedly hostile statements and conduct towards Russo are addressed in Russo’s complaint, deposition, the parties’ interrogatories, and the parties’ proposed statements of undisputed facts. Concerning February 2018, Russo’s complaint alleges that Trainer “suggest[ed] that she and another African-American employees [sic] were stealing pens from the Bank in February of 2018 and placing them in their purses.” App. 96. The District Court understood Russo as further alleging that in February 2018, Trainer also told Russo that “she was tired of Black people complaining 2 Trainer’s statements included comments concerning slavery, Jamaicans being able
to run quickly,2 abortion, the 2016 presidential election, Russo’s clothing, and Russo’s
weight. Trainer also allegedly made it difficult for Russo to schedule a Paid Time Off
(“PTO”) day, issued work instructions to Russo that made her uncomfortable, required
Russo to process her own referral paperwork (unlike other employees), asked Russo
whether she had a brain, and instructed Russo not to leave the building during her lunch
break. BMT investigated Russo’s allegations and concluded that harassment or
discrimination had not occurred, but “learned information about the day-to-day
operations of the branch which [it] intend[ed] to address” by, for example, “reminding all
employees about the anti-harassment policies of the Bank and providing additional
training to managers and employees.” App. 5.
In April 2018, Trainer assigned to another teller the origination credit for a
customer’s new credit card application. Russo felt the origination credit should have been
attributed to her. She complained to BMT’s HR department and on April 25, 2018, left
work because she was not feeling well. Russo visited the emergency room at Bryn Mawr
Hospital and did not return until May 1.
and acting like victims.” See App. 23. Finally, Russo’s complaint alleges four instances in 2018 of Trainer’s work-related hostility towards Russo that were not expressly racial. 2 According to Richard Rose, a Jamaican BMT employee, this allegation refers to Trainer urging him to work quickly and remarking that “Jamaicans are fast people” in reference to Jamaican sprinter Usain Bolt. App. 67. Bolt around this time won numerous gold medals in the 2016 Summer Olympics. Rose wrote to another BMT employee that he found Trainer’s comment “harmless.” Id. 3 On April 27, 2018, with Russo away from the bank, Assistant Manager Cathy
Brown-Hinton, who is black, discovered a security breach: the box containing the
combinations to the bank’s coin vault had been taped shut rather than locked. This led
BMT to open an internal investigation. In response to the investigation, another teller,
Shakeena Wilson, “reported that she and Russo had gone into the vault about a month
before (i.e.[,] in mid-April) and discovered that the key to the combination box was
missing and the box was open, and together they taped the box shut.” App. 3. The
investigation also revealed that Russo previously gave a new employee the keys to
another teller’s cash box. Russo later agreed that taping the key box shut was an offense
sufficiently serious to justify being fired from the bank.
On April 29, 2018, two days after BMT opened the security investigation, Russo
filed a complaint against BMT with the EEOC and the PHRC, alleging racial
discrimination. On May 1, Russo returned to work. Russo’s attorney sent a letter to
BMT’s board detailing Trainer’s alleged conduct towards Russo and demanding
$500,000 in damages. On May 25, 2018, BMT HR personnel met with Russo to discuss
the security investigation. Russo was suspended with pay and her office keys were
confiscated.
In June 2018, Russo returned from the suspension. Her pay and responsibilities
remained the same, and she had a new supervisor, Cindy Yovanov. Russo met with an
HR employee, Jennifer Stryker, to discuss her transition back to work. Stryker asked
whether Russo was aware that BMT had received a call from a reporter about a local
newspaper’s investigation of Russo’s racial discrimination allegations. Russo alleges that
4 Stryker pressured Russo to tell the reporter not to publish an article about Russo’s
allegations and said that publication would be “bad” for Russo. App. 438. BMT denies
that it discouraged Russo from cooperating with the newspaper. In any event, Russo
spoke to the reporter and the article was published.
In February 2019, Russo told a co-worker that she was “planning [her] exit
strategy” with her attorney so that she could “be out by April at the latest.” App. 295.
Around the same time, Russo complained to Yovanov that she believed that Yovanov
was discriminating and retaliating against her in response to her claim with the EEOC
and PHRC because Yovanov suggested that Russo apply for a promotion. Russo believed
that she was “being pushed into another position and being referred to in the past tense in
regards to [her] current position.” App. 6. Yovanov was “confused and surprised” by this.
App. 80. Russo remained in her role.
On May 22, 2019, Russo emailed Yovanov, HR Representatives, and BMT’s CEO
about an interaction with a hostile bank customer. Russo demanded that BMT take
action. BMT responded to Russo’s report within an hour and arranged a meeting between
Russo and two HR representatives. The next day, BMT moved to de-market the
customer, i.e., terminate the customer’s relationship with the bank. Consistent with its
normal policy, BMT sent the customer a form letter notifying her that “[a]s a courtesy,”
she was being afforded thirty days to transfer her funds before her BMT account
terminated. App. 15. BMT informed Russo that if the customer returned to the bank,
Russo did not need to assist her.
5 Russo then resigned from BMT, faulting BMT’s failure to immediately de-market
the customer. Russo alleged that BMT created “a situation where [the customer] can
return to further harass [Russo] and remind [her] of what ha[d] transpired.” App. 168.
Russo stated that she “consider[ed] this [a] constructive discharge as a result of the
Bank’s repeated failure to protect [her] and recognize [her] rights.” Id.
Russo filed suit against BMT under 42 U.S.C. § 1981, Title VII of the Civil Rights
Act, the Pennsylvania Human Relations Act (“PHRA”), and Pennsylvania common law.
BMT moved for summary judgment on all of Russo’s claims, and the Court granted the
motion. Russo appeals the District Court’s decision as to her discrimination, retaliation,
and hostile work environment claims.
II
We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. “We review [a] grant
of summary judgment de novo and draw all reasonable inferences in favor of the
nonmoving party.” Downey v. Pa. Dep’t of Corr., 968 F.3d 299, 304 (3d Cir. 2020)
(internal citation and quotation marks omitted). Summary judgment is appropriate when
“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.” Fed. R. Civ. P. 56(a). A dispute is “genuine” if
there is a sufficient evidentiary basis on which a reasonable factfinder could rule for the
non-moving party. Kaucher v. Cnty. of Bucks, 455 F.3d 418, 423 (3d Cir. 2006). And a
factual dispute is “material” if it might affect the outcome under governing law. Doe v.
Luzerne Cnty., 660 F.3d 169, 175 (3d Cir. 2011). A court’s task is not to resolve factual
6 disputes but to identify them for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248–49 (1986).
III
A
Russo alleges racial discrimination under 42 U.S.C. § 1981, Title VII, and the
PHRA. We analyze these claims under the burden-shifting framework articulated by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); see
Anderson v. Wachovia Mortg. Corp., 621 F.3d 261, 267–68 (3d Cir. 2010); Jones v. Sch.
Dist. of Phila., 198 F.3d 403, 410 (3d Cir. 1999). Under McDonnell Douglas, a plaintiff
must first establish a prima facie case of discrimination. Jones, 198 F.3d at 410 (citing
McDonnell Douglas, 411 U.S. at 802). Second, if the plaintiff succeeds, the burden shifts
to the defendant “to articulate some legitimate, nondiscriminatory reason for the
employee’s rejection.” Id. (quoting McDonnell Douglas, 411 U.S. at 802). This burden is
“relatively light.” Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994). Third and finally,
should the defendant carry its burden, the plaintiff must prove by a preponderance of the
evidence that the legitimate reasons offered by the defendant were a pretext for
discrimination. Jones, 198 F.3d at 410.
Satisfying McDonnell Douglas’s first step—establishing a prima facie case of
discrimination—requires a plaintiff to show (1) membership in a protected class, (2) that
she was qualified for the position at issue, (3) that she suffered a materially adverse
employment action and (4) that the circumstances of the adverse employment action
support an inference of discrimination. See Jackson v. Univ. of Pittsburgh, 826 F.2d 230,
7 233 (3d Cir. 1987), cert denied, 484 U.S. 1020 (1988).
Russo alleges discrimination (a) based on her suspension with pay pending the
bank’s security investigation and (b) because the bank constructively discharged her by
failing to de-market a hostile customer effective immediately rather than after a thirty-day
transition period.
We assume without deciding that Russo’s suspension with pay constituted a
materially adverse employment action.3 However, BMT carried its burden at McDonnell
Douglas’s second step by articulating a legitimate, nondiscriminatory basis for its
actions. See Jones, 198 F.3d at 410. Russo agreed that taping the key box shut was a
serious security breach, sufficient to warrant termination. And at step three, Russo has not
adduced any evidence that BMT’s stated security rationale was pretextual.
Russo also alleges that BMT’s failure to de-market a hostile customer effective
3 In Jones v. Southeastern Pa. Transp. Authority, we held that a “paid suspension pending an investigation of an employee’s alleged wrongdoing does not fall under any of the forms of adverse actions mentioned by Title VII’s substantive provision.” 796 F.3d 323, 326 (3d Cir. 2015). Thus, we held that a “suspension with pay, without more, is not an adverse employment action under the substantive provision of Title VII.” Id. (internal quotation marks and citation omitted). But in Muldrow v. City of St. Louis (2024), the Supreme Court held that transfer to a different position can qualify as a materially adverse employment action so long as there is “some harm respecting an identifiable term or condition of employment.” 144 S. Ct. 967, 974 (2024). Muldrow’s pay and rank remained the same, but she was moved from a daylight weekday shift to rotating shifts including nights and weekends. Id. at 977. Thus, Muldrow arguably abrogated Jones so that a suspension with pay might, under some circumstances, constitute an adverse employment action. 8 immediately—rather than after a thirty-day period—was racially discriminatory, and
constructively discharged her from BMT. A constructive discharge is an adverse
employment action under McDonnell Douglas step one, establishing a prima facie case of
discrimination. See id.
“Under the constructive discharge doctrine, an employee's reasonable decision to
resign because of unendurable working conditions is assimilated to a formal discharge for
remedial purposes.” Pa. State Police v. Suders, 542 U.S. 129, 141 (2004). To establish a
constructive discharge, an employee must show that “the employer knowingly permitted
conditions of discrimination in employment so intolerable that a reasonable person
subject to them would resign.” Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1084
(3d Cir. 1996) (quoting Goss v. Exxon Office Sys. Co., 747 F.2d 885, 888 (3d Cir. 1984)).
The constructive discharge inquiry is objective and “does not permit an
employee’s subjective perceptions to govern.” Gray v. York Newspapers, Inc., 957 F.2d
1070, 1083 (3d Cir. 1992) (citation omitted); see also Colwell v. Rite Aid Corp., 602 F.3d
495, 502 (3d Cir. 2010). Thus, “[a]n employee is protected from a calculated effort to
pressure h[er] into resignation through the imposition of unreasonably harsh conditions . .
. [but the employee] is not, however, guaranteed a working environment free of stress.”
Gray, 957 F.2d at 1083.
To determine if an employee was forced to resign, courts consider factors such as
whether the employee was threatened with discharge, encouraged to resign, demoted,
subjected to reduced pay, benefits or responsibilities, transferred to a less desirable
position, or given unsatisfactory job evaluations. Colwell, 602 F.3d at 503 (citing Clowes
9 v. Allegheny Valley Hosp. 991 F.2d 1159, 1161 (3d Cir. 1993)). While “the absence of
the[se] factors . . . is not necessarily dispositive,” a plaintiff alleging constructive
discharge must still demonstrate conduct that would “compel a reasonable person to
resign.” Duffy v. Paper Magic Grp., Inc., 265 F.3d 163, 168–69 (3d Cir. 2001).
Russo concedes that she was not threatened with termination, encouraged to
resign, demoted, subjected to reduced pay or benefits, transferred to a less desirable
position, or given a poor job evaluation. BMT’s prompt response to the hostile customer
cannot be reasonably described as “knowingly permit[ing] conditions of discrimination in
employment so intolerable that a reasonable person subject to them would resign.” See
Aman, 85 F.3d at 1084; see also Colwell, 602 F.3d at 502–03. Although Russo was
subjectively afraid of the hostile customer returning, the constructive discharge inquiry is
objective. See Gray, 957 F.2d at 1083. BMT maintained security measures, which it
communicated to Russo. And while we draw all reasonable inferences in Russo’s favor,
we are not bound to disregard her statement, three months before the alleged constructive
discharge, that she was already “planning [her] exit strategy.” App. 6.
Even if we agreed that BMT’s manner of de-marketing of the hostile customer
constructively discharged Russo, the claim does not survive McDonnell Douglas step
two. BMT’s response to this incident was not racially discriminatory. It acted rapidly and
applied the bank’s standard policy used in all de-marketing scenarios. So BMT carried
the “relatively light” burden of providing a nondiscriminatory reason for its conduct. See
Fuentes, 32 F.3d at 763.
We will affirm the District Court’s decision granting BMT’s motion for summary
10 judgment concerning Russo’s discrimination claims.
B
Russo alleges that BMT retaliated against her for reporting Trainer and in response
to her complaints filed with the EEOC and PHRC. Mirroring her discrimination claim,
Russo bases this retaliation allegation on (1) BMT’s security investigation and
suspension (an alleged “retaliatory setup”), and (2) the customer de-marketing incident.
See Opening Br. 21–22.
As with discrimination, Title VII and PHRA retaliation claims fall under the
McDonnell Douglas burden-shifting framework. See Moore v. City of Philadelphia, 461
F.3d 331, 342 (3d Cir. 2006). If a plaintiff establishes a prima facie case of retaliation, the
employer must provide “‘a legitimate, non-retaliatory reason’ for its conduct.” Id.
(quoting Krouse v. Am. Sterilizer Co., 126 F.3d 494, 500–01 (3d Cir. 1997)). The plaintiff
may rebut this explanation by showing that the employer's reasons for its conduct are
pretextual. Id.
At step one, to establish a prima facie case of retaliation, a plaintiff must show
that: “(1) she engaged in activity protected by Title VII; (2) the employer took an adverse
employment action against her; and (3) there was a causal connection between her
participation in the protected activity and the [retaliatory] adverse employment action.”
Moore, 461 F.3d at 340–41 (quoting Nelson v. Upsala Coll., 51 F.3d 383, 386 (3d Cir.
1995)).
“Cases in which the required causal link has been at issue have often focused on
the temporal proximity between the employee’s protected activity and the adverse
11 employment action, because this is an obvious method by which a plaintiff can proffer
circumstantial evidence ‘sufficient to raise the inference that her protected activity was
the likely reason for the adverse action.’” Kachmar v. SunGard Data Sys., Inc., 109 F.3d
173, 177 (3d Cir. 1997) (quoting Zanders v. National R.R. Passenger Corp., 898 F.2d
1127, 1135 (6th Cir. 1990)). “Where the temporal proximity is not ‘unusually
suggestive,’ we ask whether ‘the proffered evidence, looked at as a whole, may suffice to
raise the inference.’” LeBoon v. Lancaster Jewish Cmty. Ctr. Ass’n, 503 F.3d 217, 232
(3d Cir. 2007) (citing Farrell v. Planters Lifesavers Co., 206 F.3d 271, 280 (3d Cir.
2000)).
BMT’s security investigation and paid suspension of Russo were not retaliatory
because BMT initiated the investigation on April 27, 2018, two days before Russo’s
EEOC and PHRC complaints. See Daniels v. Sch. Dist. of Phila., 776 F.3d 181, 196 (3d
Cir. 2015) (rejecting retaliation claim based on purported adverse employment action that
preceded plaintiff’s first protected activity). Although Russo raised internal complaints
about Trainer earlier than April 2018, nothing in the record suggests that Brown-Hinton,
who independently reported that a security box was taped shut, was aware of those
complaints or had a motive to retaliate against Russo. See id. (concluding that a plaintiff
“cannot establish that there was a causal connection without some evidence that the
individuals responsible for the adverse action knew of the plaintiff’s protected conduct at
the time they acted”).
If we agreed that the investigation and suspension sustained a prima facie case of
retaliation, Russo’s argument would fail at McDonnell Douglas steps two and three.
12 BMT presented “legitimate, non-retaliatory” security reasons for the investigation and
suspension, which Russo acknowledged. See Moore, 461 F.3d at 342.
Russo’s other theory of retaliation—that BMT’s de-marketing response to the
hostile customer was “deliberately tepid” (Opening Br. 10)—is implausible. BMT
responded quickly to the incident, followed its normal policy, and maintained security
protections at the Bryn Mawr branch. Moreover, the timing of these events cuts against
an inference of retaliation: Russo’s protected activity (the EEOC and PHRC complaints)
occurred in April 2018, but the hostile customer incident occurred more than a year later,
in May 2019. See Daniels, 776 F.3d at 198 (judging a ten-month gap insufficient to
establish causal connection between protected activity and alleged retaliation).
Even if BMT’s hostile-client response could be construed as retaliatory, Russo’s
argument does not survive McDonnell Douglas step two because the bank applied its
standard de-marketing policy—including the thirty-day account termination window—
used in all such scenarios. See Moore, 461 F.3d at 342 (to carry its burden at McDonnell
Douglas step two, the employer must provide “a legitimate, non-retaliatory reason for its
conduct” (internal quotation marks and citation omitted)). Russo has not adduced
evidence that BMT responded differently than in other de-marketing cases, or that
BMT’s application of its standard de-marketing policy was a pretext for retaliation.
Russo’s reply brief suggests one more theory of retaliation based on Stryker’s
alleged June 2018 conversation with Russo about speaking to a reporter. See Reply Br. 5,
9. But Russo’s opening brief made only a passing reference to Stryker’s alleged threat, so
13 this argument is forfeited.4 See Barna v. Bd. of Sch. Dirs. of Panther Valley Sch. Dist.,
877 F.3d 136, 145–46 (3d Cir. 2017) (“We have long recognized, consistent with Federal
Rule of Appellate Procedure 28(a) and Third Circuit Local Appellate Rule 28.1, that an
appellant’s opening brief must set forth and address each argument the appellant wishes
to pursue in an appeal.”).
Even with all factual inferences drawn in Russo’s favor, neither BMT’s security
investigation and paid suspension of Russo, nor its handling of the hostile customer
constituted Title VII and PHRA retaliation against Russo. So we will affirm the District
Court’s grant of summary judgment concerning Russo’s retaliation claims.
C
Russo argues that the District Court decision “ignore[d] a virtual mountain of
evidence as to hostile [working] environment, partially summed up in [Russo’s] counsel’s
letter citing thirty disgusting incidents of discrimination.” Opening Br. 25–26.
Hostile work environment claims under Title VII and the PHRA are subject to the
same legal standard and are properly analyzed together. See Atkinson v. LaFayette
4 The EEOC’s amicus brief argues at length that Stryker’s alleged threat against Russo constituted retaliation. However, “we generally avoid considering arguments raised solely in amicus briefs ‘where[, as here,] the parties are competently represented by counsel.’” Polansky v. Exec. Health Res. Inc., 17 F.4th 376, 382 n.5 (3d. Cir. 2021) (quoting N.J. Retail Merchs. Ass’n v. Sidamon-Eristoff, 669 F.3d 374, 382 n.2 (3d Cir. 2012)); see also DiBiase v. SmithKline Beecham Corp., 48 F.3d 719, 731 (3d Cir. 1995) (“[A]n amicus may not frame the issues for appeal.”) (citations omitted). 14 College, 460 F.3d 447, 454 n.6 (3d Cir. 2006) (citing Kelly v. Drexel Univ., 94 F.3d 102,
105 (3d Cir. 1996)).
To establish a hostile work environment, a plaintiff must prove that: (1) she
suffered intentional discrimination; (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.” Minarsky v. Susquehanna Cnty., 895 F.3d 303, 310 (3d
Cir. 2018) (quoting Mandel v. M & Q Packaging Corp., 706 F.3d 157, 167 (3d Cir.
2013)).
A hostile work environment exists when a “workplace is permeated with
‘discriminatory intimidation, ridicule, and insult[.]’” Nat'l R.R. Passenger Corp. v.
Morgan, 536 U.S. 101, 116 (2002) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21
(1993)). “These standards for judging hostility are sufficiently demanding to ensure that
Title VII does not become a general civility code. Properly applied, they will filter out
complaints attacking the ordinary tribulations of the workplace, such as the sporadic use
of abusive language, gender-related jokes, and occasional teasing.” Faragher v. City of
Boca Raton, 524 U.S. 775, 788 (1998) (citations omitted). “[A] court must consider the
totality of 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.’” Mandel, 706 F.3d at 168 (quoting Harris, 510 U.S. at 23).
15 Under Title VII, discrimination charges “shall be filed within one hundred and
eighty days after the alleged unlawful employment practice occurred.” 42 U.S.C. §
2000e-5(e)(1). But if the charges are also filed “with a State or local agency with
authority to grant or seek relief from such practice,” such as the PHRA, then the
limitations period expands to “within three hundred days after the alleged unlawful
practice occurred.” Id.; see also App. 21. The PHRA requires filing a charge of
discrimination within 180 days but does not contain an analogous provision for
extensions. 43 P.S. § 959(h); see also App. 21. Therefore, the limitations period for a
plaintiff’s Title VII claims can be greater than the limitations period for her PHRA
claims. See Mandel, 706 F.3d at 164–65 (agreeing with district court's application of
different statutes of limitations for Title VII and PHRA claims). In other words, when a
plaintiff files a discrimination complaint with both the EEOC and the PHRC, the EEOC
limitations period increases from 180 to 300 days, but the PHRC limitations period is 180
days. See id.
The continuing-violation doctrine provides an exception to these time limitations
by allowing a plaintiff to aggregate “discriminatory acts that are not individually
actionable[.]” Id. Such acts “can occur at any time so long as they are linked in a pattern
of actions which continues into the applicable limitations period.” Id. (quoting O'Connor
v. City of Newark, 440 F.3d 125, 127 (3d Cir. 2006)). To invoke the continuing-violation
doctrine, “the plaintiff must show that all acts which constitute the claim are part of the
same unlawful employment practice and that at least one act falls within the applicable
limitations period.” Id. at 165–66 (citing Morgan, 536 U.S. at 122).
16 2
Russo filed her complaints with the EEOC and PHRC on April 29, 2018. Thus, the
limitations period for her complaint includes incidents that allegedly occurred on or after
July 3, 2017–300 days earlier.
Most of the post-July 3, 2017 incidents alleged by Russo reflected work-related
tension. This included Russo processing credit card referrals by herself (allegedly unlike
white employees), Trainer ordering Russo to transport another teller and hard currency
between bank branches in Russo’s personal vehicle, Trainer accusing Russo of lying with
respect to the procedures for processing fees, and Trainer criticizing Russo for “not being
a team player.” App. 96–97. Russo also alleges that in February 2018, Trainer accused
black employees of stealing pens from BMT.
As noted above, to assess a hostile work environment claim, we consider “the
frequency of the discriminatory conduct; its severity, whether it is physically threatening
or humiliating . . . and whether it unreasonably interferes with an employee’s work
performance.” Mandel, 706 F.3d at 168 (quoting Harris, 510 U.S. at 23). Russo’s
allegations concerning Trainer and BMT occurring after July 3, 2017 mainly evince “the
sorts of frustrating tensions between an employee and her supervisor that are inherent in
the workplace” (see App. 23), not a “workplace . . . permeated with ‘discriminatory
intimidation, ridicule, and insult’ that is ‘sufficiently severe or pervasive to alter the
conditions of the victim’s employment.’” Morgan, 536 U.S. at 116 (quoting Harris, 510
U.S. at 21).
17 Russo also alleges a number of statements by Trainer about black people that
occurred earlier than July 3, 2017. These included insensitive or inappropriate racial
comments to Russo concerning slavery, abortion, the 2016 presidential election, personal
budgeting, money and shopping, and Russo’s weight.
Even if Trainer’s February 2018 racial comment is construed as the basis for a
continuing violation theory, supporting aggregation of the pre-July 3, 2017 otherwise
time-barred conduct, Russo’s claim of hostile work environment fails to survive summary
judgment. Trainer’s 2016–17 statements and the racial comment in February 2018 were
inappropriate. Like the District Court, we “do[] not discredit Russo’s feelings of offense,
anger, or frustration, as the conduct in this case is entirely unprofessional. But
employment law is not a civility code and Russo has failed to put forth sufficient facts to
defeat the Bank’s motion for summary judgment.” App. 26 (citing Faragher, 524 U.S. at
788). “[A] lack of racial sensitivity does not, alone, amount to actionable harassment,”
and “‘[m]ere utterance of an ethnic or racial epithet which engenders offensive feelings in
an employee’ would not sufficiently alter terms and conditions of employment to violate
Title VII.” Faragher, 524 U.S. at 787. Russo remained in her job, few of the incidents or
comments alleged by Russo occurred after summer 2017, and Trainer was removed as
Russo’s supervisor. Taken as a whole, the alleged discrimination against Russo by
Trainer and BMT was not sufficiently “severe or pervasive” to sustain a prima facie case
of a hostile work environment. See Minarsky, 895 F.3d at 310 (quoting Mandel, 706 F.3d
at 167).
18 * * *
We will affirm the District Court’s grant of BMT’s motion for summary judgment
as to all claims.