Circuit rejects constructive discharge claim

It's been a while since the Second Circuit last issued a published opinion on constructive discharge. The Court this time around reminds us how difficult it is to prove that an employee was justified in quitting her job.

The case is Shultz v. Congregation Shearth Israel of the City of New York, decided on August 10. The Court of Appeals held that the plaintiff did have a pregnancy discrimination and FMLA interference claim even though management rescinded her termination two weeks after it showed her the door. That ruling found that plaintiff suffered an adverse employment action even though she did not spend a day unemployed and defendant changed its mind after she hired a lawyer.

But plaintiff also wants damages for back pay and a hostile work environment. This is important for plaintiff because, as the Court of Appeals (Lynch, Cabranes and Matsumoto D.J.] points out, plaintiff may have a claim arising from her brief pregnancy-related termination, but the damages arising from that claim may be slight.

Plaintiff claims constructive discharge in violation of Title VII because management made her working conditions so horrible that she had no choice but to resign. Here is the evidence of constructive discharge:

After [defendants rescinded the termination letter]. Shultz was subject to a “pattern and practice of repeat discrimination” by Reiss, Soloveichik, and Lustig, consisting of at least the following events: (1) speaking loudly enough to be overheard by Shultz, Reiss told Lustig in a telephone conversation that the Congregation “had a right” to disapprove of Shultz’s pre-marital pregnancy and disparaged Shultz and her lawyers; (2) Shultz’s name was removed from the Congregation’s newsletters to the membership and from the employee list that was displayed on a wall outside the synagogue; (3) Reiss continued to demand that she complete her assigned tasks before the date of her previously scheduled termination, and to transition her responsibilities to other employees; and (4) Soloveichik and Lustig refused to speak with her.

Courts do not like constructive discharge claims. “The constructive-discharge doctrine contemplates a
situation in which an employer discriminates against an employee to the point such that his working conditions become so intolerable that a reasonable person in the employee’s position would have felt compelled to resign.” The working conditions have to be horrendous for an employee to claim that management effectively pushed her out the door. This case does not satisfy that test. The Court writes:

These acts alone, occurring over a period of a few weeks, are insufficient to raise an issue of fact with respect to whether Shultz can meet “the high standard to establish that [s]he was constructively discharged.” “Such a claim requires the employee to show both (1) that there is evidence of the employer’s intent to create an intolerable environment that forces the employee to resign, and (2) that the evidence shows that a reasonable person would have found the work conditions so intolerable that he would have felt compelled to resign.” Id. (internal quotation marks omitted). Shultz has not pled sufficient facts arising after the notice of termination to establish that a reasonable person would have been compelled to resign in these circumstances.

For these reasons, plaintiff also does not have a hostile work environment claim. In order to make out a hostile work environment claim, "a plaintiff must . . . show that the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Management may have been been rude to plaintiff, but it is not against the law to be rude.