No constructive discharge in ADA case

You can't take the law into your own hands. The courts recognize that principle in employment cases, making it almost impossible for the plaintiff to recover back pay if he quits his job. That's what happened in this case brought under the Americans with Disabilities Act.

The case is Adams v. Festival Fun Parks, a summary order decided on March 21. The plaintiff enlisted some big guns to write an amicus brief on appeal. They probably entered the case because the district court did not apply the correct standard under the Amended ADA in finding that the plaintiff did not have a disability. But the Court of Appeals can affirm summary judgment on other grounds, and it does so here, finding that plaintiff does not make out a prima facie case because he did not suffer an "adverse employment action."

Normally, an adverse employment action is proven when the plaintiff is denied a promotion or fired from his job. But you can also show an adverse action if the plaintiff is constructively discharged. This case provides a nice summary of the state of the law in this area:

A plaintiff can also meet this prong if he was constructively discharged – that is, if he can show that, “rather than discharging [the employee] directly, [the employer] intentionally create[d] a work atmosphere so intolerable that [the employee] is forced to quit involuntarily.” Petrosino v. Bell Atl., 385 F.3d 210, 229 (2d Cir. 2004). “Working conditions are intolerable if they are so difficult or unpleasant that a reasonable person in the employee’s shoes would have felt compelled to resign.” Serricchio v. Wachovia Sec. LLC, 658 F.3d 169, 185 (2d Cir. 2011).

In other words, the employer has to intentionally (and not negligently or accidentally) make the plaintiff's life a living hell to justify constructive discharge. While plaintiff says he quit because he was harassed because of his disability, the Court of Appeals (Katzmann, Livingston and Carney) finds that "Adams informed his supervisors about harassment by his coworker, Justin Walters, but also testified that his complaints led one of his supervisors to speak with Walters and that some types of harassment ceased as a result. Given this, Adams has not adduced sufficient evidence to create a material question of fact regarding whether Festival deliberately created the negative work atmosphere of which Adams complains. Rather, Adams’s testimony is evidence, at most, of 'ineffective or even incompetent . . . handling of the matter,' which 'does not rise to the level of deliberate action required by our precedent.'”