Without a ratcheting-up of harassment or a new additional form of harassment, a single incident of physical intimidation is insufficient to establish constructive discharge or an increase in discrimination or harassment in a retaliatory employment action.

The plaintiff, an African American and Caucasian transgender male, alleged employment discrimination and retaliation. McKinney began working for Supreme Mid-Atlantic in February 2016 and alleged that in October 2016, his supervisor, John Shuyler, began a course of severe and pervasive harassment on the basis of McKinney’s race, national origin and gender. He further alleged he was treated differently than other employees due to his race and gender. McKinney filed suit against Supreme and Shuyler, alleging employment discrimination and retaliation in violation of Section 1981, Title VII and the Pennsylvania Human Relations Act. He also asserted state law claims for assault and battery against Shuyler. Shuyler failed to respond to the complaint, but Supreme filed a motion to dismiss. With respect to the claims of employment discrimination on the basis of race in violation of Section 1981 and discrimination on the basis of race, national origin and gender in violation of Title VII and the PHRA, the court determined that McKinney failed to exhaust his administrative remedies and failed to state a claim upon which relief could be granted. The court concluded that McKinney failed to plead constructive discharge plausibly because his complaint was devoid of allegations regarding the timing and circumstances of his separation, he never pleaded that he resigned due to unbearable conditions, and he did not allege threats of firing or suggestions of resignation, demotion, reduction in salary or benefits, involuntary transfer or unsatisfactory job evaluations. Moreover, as soon as McKinney reported Shuyler’s conduct, Supreme terminated Shuyler. The court also concluded that McKinney did not plausibly allege a retaliatory employment action, reasoning that without any “ratcheting up” or “new additional forms” of harassment, Shuyler’s harassment became no worse or better following these complaints. McKinney did allege one instance of physical intimidation by Shuyler, but the court did not find this single incident sufficient to establish a post-complaint increase in harassment. 

_{Case Law Alerts, 1st Quarter, January 2019}

_{Case Law Alerts is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2019 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.}