In Johnson v PRIDE Industries, Inc., 7 F.4th 392 (5th Cir. 2021), a co-worker referred to Michael Johnson, a black worker as “mijo” (son) and “manos” (hands) several times.  The same co-worker, Juan Palomares, also referred to Mr. Johnson as “es mayate” (this n—–) on some occasions. Mr. Palomares also used the term “pinches mayates” (f—— n—–) and “pinches negroes” (damn black)when referring to Mr. Johnson. Johnson filed suit for racial discrimination under 42 U.S.C. Sec. 1981.  Mr. Johnson complained to his supervisor and to other company officials, but the harassment continued. Johnson filed a complaint with the EEOC. About the time he received the right-to-sue notice, PRIDE approached Johnson about his many absences. The employer suggested and Johnson agreed that he would resign. His resignation letter said he had missed many work days. The letter said he missed so much work, because going to work was too stressful.

Later, Johnson filed suit. The employer moved for summary judgment, which the court granted. On appeal, the Fifth Circuit disagreed. It reversed the summary judgment. The higher court said that the use of this terms, even if in Spanish, amounted to “severe or pervasive” harassment. There was substantial factual dispute regarding whether these words created a hostile working environment. The court had no problem finding the use of terms like “mayate” to be discriminatory. Regarding the term, mijo, the court said the term could indicate racial bias. It would depend on the context. Mijo is often used in Hispanic culture as a term of endearment. But, in this context toward a black man, perhaps it was intended as something else, said the court.

But, said the court, the constructive termination came seven months after the harassment ended. The court found that summary judgment was proper regarding the constructive discharge. The court noted that PRIDE did not appear to take any concrete steps regarding Mr. Johnson’s complaints of discrimination. But, even so, the harassment appeared to have ended about the time Mr. Johnson filed his EEOC complaint. So, regarding the claim of constructive discharge, the court found summary judgment was appropriate.

See the decision here.