Moscowitz and Dallas Secure Defense Verdict Against EEOC
Jan 15, 2024
Partners Barry Moscowitz and Cassie Dallas secured an important appellate victory as the Fifth Circuit Court of Appeals affirmed the dismissal of hostile work environment and constructive discharge claims against U.S. Drug Mart. The case was brought by the Equal Employment Opportunity Commission (EEOC) on behalf of a former pharmacy technician. Associate Ryan Owen also assisted with the brief.
During the early days of the COVID-19 pandemic, a U.S. Drug Mart employee came to work wearing a face mask, which at the time violated the pharmacy’s policy. The next day, the pharmacy amended its policy to allow face masks. In a follow-up discussion with the employee, one of his supervisors explained the policy change and offered him a mask and gloves. During the meeting, another supervisor grew frustrated with the employee’s attitude and the exchange became heated. While the employee returned to work for the morning, he did not return after his lunch break.
The EEOC claimed the pharmacy’s response to the employee’s request and the heated exchange created a hostile work environment and amounted to constructive discharge in violation of the Americans with Disabilities Act (ADA) because the employee suffered from asthma. The district court disagreed and granted a summary judgment for the pharmacy.
Isolated Incidents Do Not Create a Hostile Work Environment
The Fifth Circuit affirmed the dismissal of the EEOC’s claims, recognizing that isolated incidents of harassment must rise to the level of “extremely serious” to create a hostile work environment. Consistent with its earlier decisions in Saketkoo v. Administrators of Tulane Educational Fund and Septimus v. University of Houston, which both involved verbal abuse more intense than the supervisor’s conduct here, yet did not present cognizable claims for sexual harassment under Title VII, the Fifth Circuit held the facts did not establish a disability-based harassment claim as a matter of law.
The Fifth Circuit has consistently rejected hostile work environment claims based on similar “boorish and offensive” conduct. The Per Curiam Opinion in favor of U.S. Drug Mart reaffirms that an isolated exchange, involving brusque, harsh words falls short of the high standard for establishing severe or pervasive conduct, and certainly does not demonstrate the kind of egregious or extremely serious conduct necessary to sustain a hostile work environment claim based on an isolated incident.