Wednesday, April 13, 2011

Taking the law into your own hands

There is such a thing as constructive discharge. It's when workplace conditions are so horrible that you have no choice but to quit. Easier said than done. The Second Circuit almost never recognizes a constructive discharge claim. It's like taking the law into your own hands.

The case is Borski v. Staten Island Transit, a summary order decided on March 16. Borski says he suffered retaliation for complaining about "sexually-charged cartoons posted in the workplace." You'd never know from reading this decision what those cartoons looked like. For that, go to Google Scholar, which publishes district court decisions for free. Judge Townes (Eastern District of New York) wrote:

Plaintiff attached the allegedly "vile and insulting materials" to his EEOC charge. These materials consist primarily of a series of cartoons. Some are sexual in nature and include advertisements for sexually explicit DVDs and phone sex services. Others include magazine photos altered to portray enlarged body parts. Several of the cartoons make fun of the way that Mr. Borski dresses, including some that insinuate he wears women's clothes. Other cartoons appear to be mocking Mr. Borski for being stupid, lazy and an office gossip, while others appear to mock him for his ethnicity (Polish).

If you complain about discrimination at work and then you're fired, that's retaliation. If you quit your job, that might constitute an "adverse employment action" comparable to termination if the employer "intentionally creates a work atmosphere so intolerable that the plaintiff is forced to quit involuntarily." Borski loses because the postings "had stopped years before Borski decided to retire," the Court of Appeals (Parker, Lynch and Lohier) says. The Court explains:

Sometime in the late 1990s, after Borski had endured nearly twenty years of offensive cartoons posted throughout the workplace, he complained to his supervisor. Soon after that complaint, the postings ceased, and there is no evidence that Borski encountered similarly offensive conduct between January 1, 2000 and May 6, 2003, when he gave notice of his intent to retire. Given the three-year gap between the final posting and Borski’s retirement, he cannot, and does not attempt to, argue that SIRT “ratcheted the harassment up to the breaking point” directly prior to his decision to retire. There is thus no evidence that Borski’s complaint was met with retaliatory harassment. Furthermore, no reasonable jury could conclude that a reasonable person would feel compelled to quit his job over conduct that had ceased years earlier. Borski makes no attempt to explain why he was able to withstand years of offensive behavior but suddenly felt compelled to retire three years after such behavior ceased. Without such an explanation, or any evidence of intolerable working conditions at the time that he decided to retire, no reasonable jury could conclude that Borski was constructively discharged from his position.

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