An employee who voluntarily quits a job will sometimes file suit against his or her employer, alleging that he was "constructively discharged" from the job. In other words, conditions were intolerable and the employee was forced to resign. The following are questions concerning constructive discharge claims. This is general information, not legal advice, and it may not be specific to your situation. Consult a lawyer for application of the law to actual facts
What is the basis for a constructive discharge claim? Such a claim must be based on a violation of the law. For example, Title VII prohibits employers from making employment decisions which adversely affect an employee or applicant because of that individual's race, color, religion, sex, or national origin. 42 U.S.C. § 20003-2(a).
What is constructive discharge? “Constructive discharge occurs when the employer, by its illegal discriminatory acts, has made working conditions so difficult that a reasonable person in the employee's position would feel compelled to resign.” Sandoval v. City of Boulder, 388 F.3d 1312, 1325 (10th Cir. 2004) (quotation omitted). In evaluating whether the employee's working conditions would cause such a feeling in a reasonable person, the court has said that “we apply an objective test under which neither the employee's subjective views of the situation, nor her employer's subjective intent... are relevant.” Tran v. Trs. of State Coils., in Colo., 355 F.3d 1263, 1270 (10th Cir. 2004).
The Supreme Court has held that, to establish constructive discharge, a plaintiff must show that her working conditions, from an objective standpoint, “became so intolerable that her resignation qualified as a fitting response.” Penn. State Police v. Suders, 542 U.S. 129, 133-34, 141, 124 S.Ct. 2342, 159 L.Ed.2d 204 (2004).
An isolated discriminatory act may not be sufficient to sustain a claim, because “a finding of constructive discharge may not be based solely on a discriminatory act; there must also be aggravating factors that make staying on the job intolerable.” Bennett v. Quark, Inc., 258 F.3d 1220, 1229 (10th Cir. 2001), overruled on other grounds by Boyer v. Cordant Tech., Inc., 316 F.3d 1137, 1140 (10th Cir. 2003). Such aggravating factors would include being “subjected to harsher working conditions than [similarly situated employees], excluded from meetings regarding work matters, subjected to [gender-based] comments and slurs, belittled by coworkers who repeatedly criticized her work, physically and verbally assaulted by a coworker who called her incompetent, assigned additional job duties when she complained, and denied training afforded to others.” Bankruptcy Estate of Elliott v. Oklahoma Dep't of Corrections, No. CIV-06-65-D, 2008 WL 462406, *2 (W.D. Okla. Oct. 16, 2008). See also Acrey v. Am. Sheep Indus. Ass'n, 981 F.2d 1569, 1574 (10th Cir. 1992) (constructive discharge found upon evidence that plaintiff's supervisor repeatedly asked her to quit, repeatedly barraged her with performance shortcomings, took away responsibilities, and gave the employee inadequate information and training to perform duties).
How do you prove constructive discharge? The plaintiff’s burden in a constructive discharge case is substantial and showing that the employer's conduct meets the definition of “tangible employment action” or “adverse employment action” is “not necessarily sufficient to establish a constructive discharge because a constructive discharge requires a showing that the working conditions imposed by the employer are not only tangible or adverse, but intolerable.” Id. at 1270-71; see also Penn. State Police v. Suders, 542 U.S. 129; 147 (2004) (“A hostile-environment constructive discharge claim entails something more [than conduct that amounts to actionable harassment]; see also Tutman v. WBBM-TV, Inc/CBS, Inc., 209 F.3d 1044, 1050 (7th Cir. 2000) (“Working conditions for constructive discharge must be even more egregious than the high standard for hostile work environment because in the ordinary case, and employee is expected to remain employed while seeking redress.” (quotations omitted)). A plaintiff who advances such a compound claim must show working conditions so intolerable that a reasonable person would have felt compelled to resign.”); Garrett v. Hewlett-Packard Co., 305 F.3d 1210,1221 (10th Cir. 2002) (stating that “[t]he bar is quite high in such cases”). Importantly, in constructive discharge cases “[t]he question is not whether the employee's resignation resulted from the employer's actions, but whether the employee had any other reasonable choice but to resign in light of those actions.” Tran, 355 F.3d at 1270.
The court in Thompson v. McDonnell Douglas Corp., 416 F.Supp. 972, 983 (E.D. Mo. 1976), aff'd, 552 F.2d 220 (8th Cir. 1977) required that an assertion of constructive discharge be supported by evidence of the employer's specific intent to cause the employee to quit. Id. The discussion of constructive discharge by the Court in Muller v. U.S. Steel, 509 F.2d 923 (10th Cir.), cert. denied, 423 U.S. 825, 96 S.Ct. 39, 46 L.Ed.2d 41 (1975) indicates that the employer must be proven to have "schemed" to make conditions such that the employee would resign.
What if an employee just can't tolerate the job or the co-employees, or the boss? Normal job stress is not an abusive work environment, nor are personality conflicts between employees actionable in court. Bateman v. United Parcel Service, 2002 WL 241200 (10th Cir. 2002) (construing Oklahoma law).
What if an employee quits because he knows he's going to be fired? Is this a constructive discharge? This can be a constructive discharge. “When an employer acts in a manner so as to have communicated to a reasonable employee that she will be terminated, and the plaintiff employee resigns, the employer's conduct may amount to constructive discharge. In other words, constructive discharge also occurs where, based on an employer's actions, ‘the handwriting [was] on the wall’ and the axe was about to fall.” Fischer v. Avanade, Inc., 519 F.3d 393, 409 (7th Cir.2008) (internal citations omitted). Merely predicting that one might be fired is not enough; “the prospect of being fired at the conclusion of an extended process,” without more, does not meet this standard. Cigan v. Chippewa Falls Sch. Dist., 388 F.3d 331, 333-34 (7th Cir.2004).
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