Courts get bored, too

North Philly, May 4, 2001. Officer Sean Devlin, Narcotics Strike Force, was working the morning shift. Undercover surveillance. The neighborhood? Tough as a three-dollar steak. Devlin knew. Five years on the beat, nine months with the Strike Force. He'd made fifteen, twenty drug busts in the neighborhood.

Devlin spotted him: a lone man on the corner. Another approached. Quick exchange of words. Cash handed over; small objects handed back. Each man then quickly on his own way. Devlin knew the guy wasn't buying bus tokens. He radioed a description and Officer Stein picked up the buyer. Sure enough: three bags of crack in the guy's pocket. Head downtown and book him. Just another day at the office.

So begins Chief Justice Roberts' dissent in Pennsylvania v. Dunlap, 129 S. Ct. 448, 172 L. Ed. 2d 321 (2008).

The courts are not as humorless as some legal writers might suppose.  Take, for example, a footnote in a 5th Circuit opinion in Easter Seal Society for Crippled Children v. Playboy Enterprises, 815 F.2d 323 (5th Cir. 1987). See footnotes on p. 325.

Thus, this most delightful of case names: Easter Seal Society for Crippled Children v. Playboy Enterprises; seriously rivaled, in our judgment, only by United States v. 11 1/4 Dozen Packages of Article Labeled in Part Mrs. Moffat's Shoo Fly Powders for Drunkenness.  

Another case in point is In re United States Brass Corp., No. 96-2952 (7th Cir. 1997). The esteemed Judge Posner, the finest judicial mind of this century, is famous for his wry comments and well-written, common-sense, yet scholarly opinions. The government should name a major continent, or at least an ocean, after him.

This case involved several consolidated bankruptcies of affiliated corporations who, Judge Posner noted, had been sued for the "Qest System," the judge noting that it was "a plumbing system that turned out to be defective (which goes to prove that if you can't spell, you're liable to make other mistakes as well)."

Yet another example may be seen in Smith v. Colonial Penn Insurance Co., 943 F. Supp. 782 (S.D. Tex. 1996). The request for a change of venue was centered around the fact that Galveston does not have a commercial airport into which Defendant's representatives may fly and "out of which they may be expediently whisked to the federal courthouse in Galveston. Rather, Defendant contends that it will be faced with the huge 'inconvenience' of flying into Houston and driving less than forty miles to the Galveston courthouse, an act that will 'encumber' it with 'unnecessary driving time and expenses.'" The Court refused to move the location of the trial, since the Texas federal courthouse "got lights, indoor plummin', 'lectric doors, and all sorts of new stuff, almost like them big courthouses back East." The Court said, "it is not this Court's concern how Plaintiff gets here, whether it be by plane, train, automobile, horseback, foot, or on the back of a huge Texas jackrabbit, as long as Plaintiff is here at the proper date and time." The Court pointed out that traveling to the federal courthouse in Galveston does not involve a trip by covered wagon.

For additional interesting court opinions, check our website under the tab, "Strange But True."

Teacher Due Process Act

Due process for Oklahoma teachers is governed by the Teacher Due Process Act of 1990, 70 O.S. § 6-101.20 et seq.

The State Board of Education promulgates standards of performance and conduct for teachers. 70 O.S.§  6-101.21. The Act provides:

A. Subject to the provisions of the Teacher Due Process Act of 1990, a career teacher may be dismissed or not reemployed for:

1. Willful neglect of duty;
2. Repeated negligence in performance of duty;
3. Mental or physical abuse to a child;
4. Incompetency;
5. Instructional ineffectiveness;
6. Unsatisfactory teaching performance;
7. Commission of an act of moral turpitude; or8. Abandonment of contract.

70 O.S.  §6-101.22(A). Teachers "who are employed on contracts shall be afforded all substantive and procedural rights set forth in the Teacher Due Process Act of 1990 including the dismissal, suspension, and nonreemployment provisions applicable to probationary or career teachers as defined in Section 6-101.3." 70 O.S. § 6-101.23.

The Act requires that an administrator identify in writing a teacher's poor performance or conduct and allow the teacher time to correct it. 70 O.S. § 6-101.24. Additionally, a recommendation to dismiss or not reemploy a teacher is to be in writing, submitted to the board of education, specifying the statutory grounds on which the recommendation is based. 70 O.S. § 6-101.25. The teacher is entitled to a hearing prior to his termination. 70 O.S.  §6-101.26. A career teacher is entitled to a trial de novo in the district court of the county in which the school district is located. 70  O.S. § 6-101.27.

The Act exempts certain teachers from its requirements:

A. The dismissal, suspension and nonreemployment provisions of the Teacher Due Process Act of 1990 shall not apply to:

1. Substitute teachers;

2. Adult education teachers; and

3. Teachers who are employed on temporary contracts.

B. The dismissal and suspension provisions of the Teacher Due Process Act of 1990 shall apply to teachers who are employed on temporary contracts for a complete school year and to teachers who are employed in positions fully funded by federal or private categorical grants, except that such teachers shall be employed only for the duration of the temporary contract or the grant.


C. The evaluation provisions in Sections 6-101.10 and 6-101.11 of this title and in the Teacher Due Process Act of 1990 shall apply to teachers who are employed on temporary contracts for a complete school year and to teachers who are employed in positions fully funded by federal or private categorical grants, except that such teachers shall be employed only for the duration of the temporary contract or the grant.


D. Teachers other than those specifically excepted in subsection A of this section who are employed on contracts shall be afforded all substantive and procedural rights set forth in the Teacher Due Process Act of 1990 including the dismissal, suspension, and nonreemployment provisions applicable to probationary or career teachers as defined in Section 6-101.3 of this title.


E. On and after the effective date of this act any teacher who has worked a complete school year under a temporary contract in a school district shall be granted a year of service credit toward career status in that district.

F. No teacher shall be hired on a temporary contract by a school district for more than three semesters, except for a:

1. Teacher hired to replace a teacher who is on an approved leave of absence and who is expected to return to employment with the school district; or

2. Teacher who is a retired member of the Teachers' Retirement System of Oklahoma.


G. No teacher shall be offered a temporary contract with a school district without a full written disclosure at the time a position is offered by the administration of the school district which sets forth the terms and conditions of the temporary contract. In the event the school district fails to provide such written disclosure, the teacher shall be considered as employed on a continuing contract basis.


H. On and after the effective date of this act no teacher who is employed on a continuing contract basis by a school district shall be reemployed on a temporary contract in that school district.

70 O.S. § 6-101.23.

Tenure provides special rights.  As noted in Weston v. Independent School Dist. No. 35 of Cherokee County, 170 P.3d 539 (Okla. 2007):

We have said that the teacher tenure law, 70 O.S. § 6-101, et seq., was intended to give job security to competent and qualified teachers and to protect them from dismissal or non-renewal for political, personal, arbitrary or discriminatory reasons. Babb v. Independent School District, 1992 OK 46, 829 P.2d 973, 975. Tenure status, which is statutorily conferred upon teachers who have been in employment of the school district the required number of years, demonstrates legislative intent to grant teachers substantive rights in their continued position, which are not possessed by those in a temporary or probationary status. Id. Under this regime, teacher contracts are automatically renewed on a continuing basis unless a school board or a teacher acts to prevent the employment's renewal. Once attained, tenure status cannot be lost except on the grounds sanctioned by law. 829 P.2d at 976.

This general discussion of the law may not contain all the legal principles applicable to your specific situation.  Therefore, it is important to obtain custom legal advice for yourself.

Constructive Discharge of Employees: Q&A

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).

Summary Judgment

Summary judgment often saves time and money.

Often lawyers recommend filing a motion for summary judgment, which terminates the lawsuit in favor of the client -- or a motion for partial summary judgment, which can narrow the scope of the lawsuit and thus save time and money for everyone. 

If certain facts are not in dispute, the Judge may apply the law applicable to those facts and rule as to who wins.  The filing of a motion for summary forces the opposing party to present his best case, along with supporting evidence.  Summary judgment “is the put up or shut up moment in a lawsuit when a party must show what evidence it has that would convince a trier of fact to accept its version of events.” Johnson v. Cambridge Industry, Inc., 325 F.3d 892, 901 (7th Cir. 2003).

For example, perhaps a plaintiff (the person who files the lawsuit) has a legimate complaint against a defendant (the person who has been sued) -- but the lawsuit was not filed on a timely basis.  There is a "statute of limitations" for most claims, a time within which it must be filed.  If the statute of limitations has run, the plaintiff's claim cannot succeed.  The fact that the suit was filed too late is brought to the court's attention through a motion for summary judgment.

The reason for the summary judgment procedure is that the trier of fact (usually a jury, and sometimes a judge) has nothing to try when the facts are not in dispute.  As noted in Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986), on remand, 807 F.2d 44 (3d Cir. 1986), "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no 'genuine issue for trial.' " Id. at 1356.

In writing briefs to support a summary judgment motion, the parties must attach evidence, usually documents, transcripts of deposition testimony, or affidavits.  That's why lawyers like to serve discovery requests and ask the other party to produce documents or appear for a deposition -- so that the evidence can be discovered before trial.  In summary judgment proceedings, “conclusory allegations will not suffice to create a genuine issue” requiring trial. Delaware & Hudson Railway Co. v. Consolidated Rail Corp., 902 F.2d 174, 178 (2d Cir.1990). The party opposing summary judgment “cannot ‘escape summary judgment merely by vaguely asserting the existing of some unspecified disputed material facts, or defeat the motion through mere speculation or conjecture.’ ” Westernworld Insurance Co. v. Stack Oil Inc., 922 F.2d 118, 121 (2d Cir.1990), citing and quoting Borthwick v. First Georgetown Securities, Inc., 892 F.2d 178, 181 (2d Cir.1989).

Another interesting aspect of the summary judgment process is that witnesses cannot offer to the court an affidavit that contradicts their prior deposition testimony, in order to defeat a motion for summary judgment.  Where an affidavit attempts to create a sham fact issue by contradicting sworn deposition testimony, it may be properly disregarded by the court for summary judgment purposes. Rios v. Bigler, 67 F.3d 1543, 1551 (10th Cir.1995); Wiley v. Brown, 164 F.R.D. 547 (D. Kan. 1996) (Plaintiff is not permitted to virtually rewrite portions of a deposition, particularly after defendant has filed a summary judgment motion.); Piscione v. Ernst & Young, L.L.P., 171 F.3d 527, 532-33 (7th Cir.1999)(a subsequent affidavit may not be used to contradict the witness’s deposition).  In Cities Service Co. v. Gulf Oil Corp., 1999 OK 14, 980 P.2d 116, the Oklahoma Supreme Court affirmed the trial court’s ruling which precluded a witness from testifying at trial since the testimony at trial was materially different than that offered in deposition. As a result of the change, the opposing party was deprived of any meaningful way to probe the basis of the opinion.

Summary judgment is an important tool in the litigator's arsenal.  A lawsuit should be prosecuted or defended in such a way as to shorten the amount of time and effort required to finish it.  Finishing it early through an order where the court grants summary judgment to our client is always our primary goal.  Cutting the scope of the lawsuit by obtaining a partial summary judgment, where a full summary judgment cannot be obtained, is also beneficial in many cases.  Where neither is successful, you have still accomplished an important goal of exposing any weaknesses in a case or defense, which can contribute to a favorable settlement.  At the very least, the research can be used in trial briefs, jury instructions, and other motions.

Summary judgment should always be considered as part of an overall litigation strategy.