BY Donald J. Spero, Esq.
The developing employment law has made it clear that there is more than one way for an employer to say goodbye to an employee and be held liable for the consequences of an allegedly illegal discharge. The magic words "you are fired" or the many explicit equivalents of this phrase are not indispensable to a finding that an employee’s departure was not totally his or her own decision. An often contested legal issue in employment cases is whether the individual was constructively discharged. Where the employee says "I quit," or some version thereof, or just stops showing up for work, the employer may be no less liable for the consequences, including lost past and future earnings, than if the employer had expressly terminated the individual’s employment.
There is considerable agreement among the courts as to the legal prerequisite for a fact finder to conclude that an employee was constructively discharged. In Steele v. Offshore Ship Building, Inc., 867 F.2d 1311, 1307 (11th Cir. 1989) the court held that "To prove constructive discharge, the employees must demonstrate that their working conditions were so intolerable that a reasonable person in their position would be compelled to resign." (emphasis supplied) As the court stated in Henson v. City of Dundee, 682 F.2d 897,907
(11th Cir. 1982), quoting Young v. Southwestern Savings & Loan Ass’n. 509 F.2d 140,144
(5th Cir. 1975):
When an employee involuntarily resigns in order to escape intolerable and illegal employment requirements to which he or she is subjected because of race, color, religion, sex or national origin, the employer has committed// a constructive discharge in violation of Title VII. (internal quotation marks omitted)
This application of this standard by the federal circuit courts is not limited to claims of constructive discharge in cases brought under Title VII of the 1964 Civil Rights Act. It also applies where the plaintiff makes a claim under the Age Discrimination in Employment Act ("ADEA"), The Americans With Disabilities Act, ( the "ADA"), the Equal Pay Act ( the "EPA") and most likely under any other theory barring adverse action by an employer against an employee.
The courts apply the reasonable person standard quoted above in Steele, supra, without reference to the personal preferences of the plaintiff or the reaction of an unduly sensitive individual. In Serrano-Cruz v. DFI Puerto Rico, Inc. 109 F. 3d. 23,26 (1st Cir. 1997) the court held to the objective standard where the plaintiff complained about a lateral transfer. The court stated that an employee "... may not ‘... be unreasonably sensitive to a change in job responsibilities." See also Phillips v. Taco Bell Corporation, 156 F. 3d 884,890 (8th Cir. 1998) "...Intolerability of working conditions is judged by an objective standard, not the plaintiff’s subjective feelings."
A plaintiff who contends that she was constructively discharged has the burden of proving that allegation. Garner v. Wal-Mart Stores, Inc. 807 F. 2d 1536, 1537 (8th Cir. 1987). Courts have not hesitated to find that plaintiffs have failed, as a matter of law, to meet this formidable burden. The fact that an individual suffered an illegal discriminatory or retaliatory action is not necessarily sufficient to justify the person’s leaving the employer. In Coffman v. Tracker Marine L.P., 143 F.3d 1241 (8th Cir. 1998) the appellate court held as a matter of law that the plaintiff was not constructively discharged although it sustained a jury verdict finding retaliation due to the plaintiff’s complaints about sexual harassment. After making the complaint the plaintiff had been denied three days of paid vacation, had her supervisory responsibilities sharply reduced and her manager communicated with her by e-mail rather than in person. She was also excluded from some management meetings that she ordinarily would have attended. The court stated at 143 F.3d 1247 "A plaintiff must show more than just a Title VII violation by her employer in order to prove she has been constructively discharged." (citation omitted) Weight was given to the fact that the employer had endeavored, however ineffectively, to resolve her problem and that she was not without a line of appeal for redress within the company. Similarly in Phillips v. Taco Bel corp., supra, a panel of the Eighth Circuit found that there were jury questions as to whether there was a sexually hostile environment and whether the employer was liable for the offending supervisor’s conduct. The court nevertheless ruled as a matter of law, notwithstanding how the jury might rule on remand, that there was no constructive discharge.
A discriminatory denial of a promotion has been held to be an insufficient reason for an individual to leave a position and recover lost wages on a constructive discharge theory. In Wardwell v. The School Board of Palm Beach County, Florida, 786 F.3d 1554 (11th Cir. 1986) the plaintiff complained of sex discrimination in her being denied a promotion to Acting Director of Transportation of the School Board. She also alleged her duties were increased after the denial of the promotion. The court observed at 786 F.3d 1558:
While Wardwell may have been frustrated by her failure to be appointed Acting Director, and while it may have been a matter of some embarrassment to her, these facts, together with her added workload, simply do not rise to the intolerable level at which a reasonable person would feel compelled to resign.
The Federal Appellate Court for the Tenth Circuit made a similar ruling in Thomas v. Denny’s, Inc. 111 F.3d 1500 (10th Cir. 1997). The court held that the plaintiff’s racially discriminatory denial of a promotion to a management position did not rise to the level of intolerability necessary for a constructive discharge. See also Lindale v. Tokheim Corp., 145 F.3d 953,956 (7th Cir. 1998) ("... a reasonable employee would not consider a failure to have been promoted an event that made her working conditions intolerable.")
It is not uncommon for an employee, when resigning, to give some neutral reason having nothing to do with the employer’s actions, and then later claim that he or she was constructively discharged. The cases have on occasion found that the employee’s stated reason was the true reason and that leaving was altogether voluntary. In Henson V. Dundee, supra, the plaintiff, a police department dispatcher, claimed that she resigned because of two years of sexual harassment by the police chief. In her letter of resignation she wrote that she "sincerely enjoyed " her work at the police department but she was resigning due to "work conditions and job security." 682 F.2d at 908 Evidence at the trial indicated that she had told a married policeman with whom she was having an affair that she would resign if he was forced to resign because of the affair. Her paramour was in fact forced to leave. The appellate court found that these statements justified the trial court’s resolving the conflicting testimony over why she quit in favor of a finding that her leaving was voluntary rather than a constructive discharge.
Another case in which the court found the plaintiff left her employment for reasons unrelated to the employer’s action was Huddelston v. Roger Dean, Chevrolet, Inc., 845 F.2d 900 (11th Cir. 1988). Although the plaintiff had endured considerable mistreatment she wrote on her notice of resignation that she was leaving for fear of her own and her daughter’s safety. She had received threats from a coworker over a dispute which was unrelated to her work. Based on this evidence the appellate court ruled that the trial court was justified in finding she left because of personal problems with the coworker rather than being constructively discharged due to the harassment.
There will be times when an employer who wishes to dismiss an employee will offer the individual the opportunity to resign. This may amount to a forced resignation and thus a constructive discharge. In Faruki v. Parsons, 123 F.3d 315 (5th Cir. 1997), a Title VII national origin discrimination case, the plaintiff resigned after he was told that he could not be retained and that in one week he would be placed on unpaid leave. He was found to have been constructively discharged. Other cases finding that an ultimatum to resign or be fired can amount to constructive discharge are Burks v. Oklahoma Publishing Co., 81 F.3d 975,978 (10th Cir. 1996) (plaintiff’s’s resignation after her manager’s refusal to authorize new business cards and refusal to answer plaintiff’s inquiry whether her services would be needed any longer after she was accused of eavesdropping did not justify a constructive discharge jury instruction) and Jenkins v. State of Louisiana Department of Corrections, 874 F.2d 992, 996 (5th Cir. 1989) (forcing a Sabbatarian employee to work on his Sabbath, if that is what occurred, would have been a constructive discharge). On the other hand the court found no constructive discharge in Barnette v. Folmar, 64 F.3d.598 (11th Cir. 1995) where policemen under suspicion of stealing money and drugs taken in a raid were given the opportunity to resign in lieu of facing charges.
The issue of whether a request for resignation from public employment constitutes a constructive discharge came up in Hargray v. City of Hallandale, 57 F. 3d 1560 (11th Cir. 1995). This was an action under 42 U.S.C. §1983 filed by a city employee who was given
the alternatives of resigning or facing criminal charges. The court note at 57 F.3d 1568 that:
The relevant cases reveal that there are two situations in which an employee's resignation will be deemed involuntary, and thus a deprivation of due process: (1) where the employer forces the resignation by coercion or duress, see, e.g., Schultz v. United States Navy, 810 F.2d 1133, 1135-37 (Fed Cir. .1987); or (2) where the employer obtains the resignation by deceiving or misrepresenting a material fact to the employee, see, e.g., Scharf, 710 F.2d at 1574-76; Covington v. Department of Health & Human Serv., 750 F.2d 937, 942-44 (Fed Cir. .1984).
The court pointed to five factors which are helpful in determining whether there is coercion or duress, at 57 F. 3d 1568:Under the coercion or duress theory, we consider whether, under the totality of the circumstances, the employer's conduct in obtaining the employee's resignation deprived the employee of free will in choosing to resign. Other circuits addressing the issue have indicated that certain factors may be helpful in determining whether the resignation was obtained by coercion or duress: (1) whether the employee was given some alternative to resignation; (2) whether the employee understood the nature of the choice he was given; (3) whether the employee was given a reasonable time in which to choose; (4) whether the employee was permitted to select the effective date of the resignation; and (5) whether the employee had the advice of counsel. (citations omitted)
The Hargray court found that the plaintiff’s resignation was not coerced despite the fact that he was given a limited time to make the decision and did not have the advice of an attorney. The court placed its emphasis on the fact that there was very solid information pointing to Hargray’s guilt. The resignation interview, which took place in a police station, was tape recorded. Hargray was free to leave the police station without signing a resignation. The tape recording revealed that the atmosphere of the interview was casual. The court also remarked that Hargray, who did not request more time to make his decision, had a good idea of what to expect when he was called to the interview. The court commented at 57 F.3d 1569 "... the mere fact that he was forced to choose between two inherently unpleasant alternatives does not in itself mean that his resignation was submitted under duress." It noted that he could have decided to fight the criminal charges. Additionally the court found that Hargray’s resignation was not obtained by making misrepresentations to him since there was sufficient evidence to find probable cause to bring criminal charges against him.
An undeserved lateral transfer may or may not amount to a constructive discharge depending on the totality of the circumstances. In Serrano-Cruz v. DFI Puerto Rico, supra, the Federal Appellate Court for the First District, affirmed a summary judgement for the employer. In this ADEA action, the court declined to find to find as a matter of law that a lateral transfer to a newly created position with the same compensation and benefits amounted to a constructive discharge. The court pointed to the fact that the plaintiff would have continued to be the second highest paid employee in her division. It was significant that the plaintiff quit instead of taking the transfer. Not having worked at the new job she was unable to adduce evidence to demonstrate that the transfer would have been intolerable to a reasonable person.
An individual can not be overly sensitive in declining to accept a new job and calling it a constructive discharge. In reversing the portion of the district’s court decision finding the plaintiff’s retaliatory transfer to be a constructive discharge the court in Alicea Rosado v. Garcia Santiago, 562 F. 2d 114, 119-20 (1st Cir. 1997) made the following observation:
Insofar as the district court rested its finding of constructive discharge on the loss of prestige entailed in the transfer, we think it erred. To be sure, he would not have been in charge of an office as had been true at Barrinquitas. But this sort of limited blow to one’s pride or prestige does not provide reason enough to resign during whatever period may be required to seek judicial or administrative relief.
A tenuous offer of an alternative job was found to be an actual discharge rather than a constructive discharge in Thomas v. Dillard Department Stores, Inc., 116 F.3d 1432, (11th Cir. 1997), an ADEA action. The court stated at 116 F.3d 1435 "...that an offer of an alternative position does not automatically preclude an inquiry as whether a plaintiff was actually terminated." Thomas was told by a new store manager that "you can no longer be an Area Sales Manager in this store." 116 F.3d at 1436 He made suggestions about finding her a lesser position as a sales person, but told people she was no longer with the company during the period she went home to consider taking a lesser position. A jury verdict for the plaintiff was affirmed by the Eleventh Circuit. The court held that the jury could reasonably have found that the manager’s statement to Thomas and instructing her to go home after a half-half-hearted offer of another position, constituted a termination of her employment.
Courts have frequently ruled as a matter of law, that accepting the plaintiff’s allegations on their face, the complained of conduct was not so intolerable as to force a reasonable person to resign. Where the employer has promptly addressed and cured an improper situation the employee is not justified in resigning. In Steele v. Offshore Building, Inc., supra, two employees resigned ten days after the employer had spoken to a manager who had created a sexually hostile environment. After talking to the manager, the employer had promised the employees the conduct would stop, which in fact it did. They were dissatisfied that the employer did not discharge the offending manager. The Eleventh Circuit affirmed a bench trial verdict for the employer, finding that on these facts there was no constructive discharge. In Johnson v. Runyon, 137 F.3d 1081 (8th Cir. 1998) a post office employee who filed an ADEA action after accepting a voluntary early retirement offer was found not to have been constructively discharged. Prior to accepting the offer the plaintiff had been advised that his job was being eliminated in a reorganization. He was told that he would not get one of the newly created management positions. He had also been promised that if he did not retire he would be offered a job in which he would not suffer any loss of compensation. Affirming a bench trial decision in favor of the Postal Service, the court ruled as a matter of law that no reasonable person would find these circumstances intolerable.
Munday v. Waste Management of North America, Inc., 126 F.3d 239 (4th Cir. 1997) cert. denied 118 S.Ct. 105 (1998) involved a constructive discharge claim by an employee who returned to work after settling sexual harassment and sex discrimination claims. After her return to work she was ignored by her co-workers on the instructions of the local manager who had told them to avoid her and not to socialize with her. They were also instructed to spy on her. The General manager failed to address her complaints, although others in authority did so. The Fourth Circuit reversed a bench trial decision, finding that Munday had been constructively discharged. The court observed that her working conditions could not have been so intolerable since she continued working for the employer without complaining for seventeen months while this was going on. The court also found it significant that no co-workers actually did spy on the plaintiff. The court reasoned at 126 F.3d that:
Intolerability of working conditions ... is assessed by the objective standard of whether a ‘reasonable person’ in the employee’s position would have felt compelled to resign ... An employee is protected from a calculated effort to pressure him into resignation through the imposition of unreasonably harsh conditions, in excess of those faced by his co-workers. He is not, however, guaranteed a working environment free of stress. Bristow [v. Daily Press, Inc.] , 770 F. 2d at 1255. [4th Cir. 1996] (citation is in the original)
The Third Circuit, in Clowes v. Allegheny Valley Hospital, 991 F.2d 1159 (3rd Cir. 1993) reversed a judgement in favor of a nurse who had worked for the defendant hospital for 30 years. At her own request she had been transferred to the hospital’s intravenous area where her work received regular criticism from her supervisor. She also complained that the supervisor was constantly scrutinizing her work. She received evaluations of "fair’ whereas previously she had never been rated less than good. Ultimately she resigned and filed an action in which she claimed age discrimination in violation of the ADEA and constructive discharge. In ruling as a matter of law that the plaintiff was not constructively discharged, the court took cognizance of the fact that Clowes was never threatened with discharge. Additionally she had not been demoted, involuntarily transferred or requested to resign or retire. The court commented at 991 F.2d 1162 that
...Clowes’ complaints focused exclusively on Malloy’s allegedly overzealous supervision of her work. Clowes has not brought to our attention a single case in which a constructive discharge has been found based solely on such supervision. While [we] do not hold that an employer’s imposition of unreasonably exacting standards of job performance may never amount to a constructive discharge, we are convinced that a constructive discharge claim based solely on evidence of close supervision of job performance must be critically examined so that the ADEA is not improperly used as a means of thwarting an employer’s nondiscriminatory efforts to insist on high standards.
In other cases courts have left it to a jury to decide whether a constructive discharge occurred. In Morgan v. Ford, 6 F.2nd 750 (11th Cir. 1993), a Title VII action, the appellate court set aside a summary judgement for the employer on the issue of sexual harassment and remanded the case for a jury trial. Morgan, a Correctional Officer in the Georgia Department of Corrections, had been subjected to unwanted sexually oriented comments by an individual who had twice been her supervisor over a period of more than two years. During the first period of working under him she complained and received a warning about filing false charges against supervisor. After he discontinued being her supervisor he procured others to send her messages stating that he missed her and that she should drop her complaints against him. She also feared he would become her supervisor again. The court held that there was a question of fact as to whether Morgan’s working conditions were intolerable.
An ADEA case in which the court found a jury question as to whether the plaintiff suffered a constructive discharge is Poole v. The Country Club of Columbus, Inc., 129 F.3d 551 (11th Cir. 1997). Poole, an executive secretary, endured two years of deteriorating relationships with her boss. She was insulted with comments about her age and appearance. In addition her boss refused to submit her worker’s compensation claim to the company’s insurance carrier for over one year. During three days in her last week as an executive secretary she was not permitted to use her desk or computer. Instead she was sent to another location where she stuffed envelopes and corrected others individual’s typing. Ultimately she was transferred to a position in which she had no duties. In her new assignment she had a chair but no desk. When she was moved she was not permitted to pack her belongings herself. In the new locations she had only boxes in which to keep her personal property. Other employees were instructed not to speak to her. She resigned after a few days of this ordeal. A panel of the Eleventh Circuit reversed a summary judgement for the employer and remanded the case for a jury trial on the question of constructive discharge.
An employee who quits precipitously may be precluded from proving a constructive discharge. Where a discriminatory environment exists the employer must be given the opportunity to take corrective action.
A constructive discharge will generally not be found if the employer is not given sufficient time to remedy this situation. None of the plaintiffs returned to work after complaining to the company’s appropriate corporate management. Summary judgment on the constructive discharge claim was appropriate; the plaintiffs did not allow sufficient time for Thompson and Brock to correct the situation.
Killgore v. Thompson and Brock Management, Inc., 93 F.3d 752, 754 (11th Cir. 1996)
In Clowes v. Allegheny Valley Hospital, supra, the court took notice that Clowes never asked for a transfer. She did not complain that she would feel compelled to resign if her situation were not alleviated nor did she attempt to file a grievance. The court remarked at 991 F.2d 1161 that "A reasonable employee would usually explore such alternative avenues thoroughly before coming to the conclusion that resignation is the only option."
The same type of reasoning was applied by the court in Shealy v. Winston, 929 F.2d 1009, 1013 (4th Cir. 1991) Shealy was a court’s chief magistrate who was told by his supervising judges that he was too old and must retire. When Shealy informed them he had one year left on his term he was told that he could serve it out as a regular magistrate, working under the new chief magistrate. Shealy was told by the judges they would inquire of the legislature to determine what kind of arrangements could be made for him. Two days later, before they could get back to him, Shealy told the judges he would retire rather than serve as a regular magistrate. He felt it might be awkward working for the new chief magistrate and that he might have to work a night shift. Summary judgement was entered against Shealy in his ADEA action. The appellate court affirmed holding as a matter of law that he was not constructively discharged. The court stated at 929 F.2d 1013:
Shealy was undisputedly given an alternative, that of continuing as a regular magistrate. To the extent that [the plaintiff] did not completely understand the nature of the alternative position, this is the result of deciding to retire before learning more at the planned follow up meeting.
In finding that there was no constructive discharge the court also noted that "merely ‘awkward’ situations cannot support a claim of constructive discharge." id at 1013
One way to limit exposure to claims for lost wages by those who claim constructive discharge (or actual discharge or failure to hire for that matter) is to make an unconditional offer of employment to the individual. The Supreme Court held in Ford Motor Co. V. EEOC, 458 U.S. 219, 73 L.Ed 2d 721, 102 S.Ct. 3057 (1982) that an unconditional offer of employment tolls the employer’s back-pay liability. The Court based its finding on the fact that a plaintiff is obligated to mitigate his or her damages. The court commented at 458 U.S. 231-32:
An unemployed or under-employed claimant, like all other Title VII claimants, is subject to the statutory duty to minimize damages set out in §706(g). This duty, rooted in an ancient principle of law, requires the claimant to use reasonable diligence in finding other suitable employment. Although the unemployed or under-employed claimant need not go into another line of work, accept a demotion, or take a demeaning position, he forfeits his right to back-pay if he refuses a job substantially equivalent to the one he was denied. Consequently, an employer charged with unlawful discrimination often can toll the accrual of back pay liability by unconditionally offering the claimant the job he sought and thereby providing him with an opportunity to minimize damages. (Footnotes omitted.) The offer must be of equivalent employment and it can not be conditioned on the employing dismissing his or her suit or relinquishing his or her claim in any respect. As the court stated in no uncertain terms at 458 U.S. 232 FN. 18:
The claimant’s obligation to minimize damage in order to retain his right to compensation does not require him to settle his claim against the employer, in whole or in part. Thus, an applicant or discharged employee is not required to accept a job offered by the employer on the condition that claims against the employer be compromised. (citation omitted)
To be certain of prevailing with this defense the offer must be firm, definite and clear. It can not be hedged with statements like "we will try to find something for you" or "would you like to work at" such and such position. Where there are allegations of a hostile work environment it is best that the tendered position be away from the source of that hostility. Where the problem originated with a particular supervisor it is preferable that the individual work under a different supervisor.
The employee’s duty to mitigate mandates that an employee may not remove herself from the labor market and be compensated for lost wages. For the same reason an employee may be disqualified from collecting lost wages if she returns to school instead of seeking a job.In Miller v. Marsh, 766 F.2d 490, 492 (11th Cir. 1985) quoting Taylor v. Safeway Stores, Inc., 524 F.2d 263 (10th Cir. 1975), the court said:
[W]hen an employee opts to attend school, curtailing present earning capacity in order to reap greater future earnings, a back pay award for the period while attending school also would be like receiving a double benefit. We fail to see that the district court abused its discretion in not including the time Taylor was attending school in the computation of the back pay award.In Hunter v. Allis-Chalmers Corp., 797 F.2d 1417, 1428 (7th Cir. 1986), the court held that "You cannot just leave the labor force after being wrongfully discharged, in the hopes of being some day made whole by a judgment of law." In Stanfield v. Answering Service, Inc., 867 F.2d 1290, 1295-1296 (11th Cir. 1989) the court ruled that plaintiff, who was wrongfully discharged in violation of the ADEA, was not entitled to recover lost wages or to be reinstated where she had refused her employer’s offer of reinstatement. The Plaintiff had declined because of her husband’s death. The court found that this was not an adequate reason.
It is not suggested that an unconditional offer of a position be made in every case.
Where an individual is highly likely to be a detriment to the employer by virtue of incompetence or deportment it may be necessary to bring the situation to a conclusion rather than face future contention with the person . However there will be occasions where a valuable employee has quit with justification or due to a bona fide misunderstanding.A proper resolution of the person’s grievance may return someone who will be an asset to the employer.
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