Did he jump or was he pushed? Is this issue for a jury?

This is an interesting case about employment discrimination law and summary judgment. I argued the appeal, in which the Second Circuit holds the plaintiff did not present enough evidence that he was fired from his job.

The case is Ware v. L-3 Vertex Aerospace, a summary order issued on November 5. To make out a prima facie case of retaliation under Title VII, the plaintiff must show he was subjected to an adverse employment action, usually a termination or demotion. When they have lost their job, Plaintiffs will lose on this element of the claim when they argue they were constructive discharged, a difficult burden because the plaintiff must prove his job conditions were so bad that a reasonable person would have been compelled to resign. Prior to this one, I have not yet seen a case where the Court said the plaintiff was unable to prove that he was fired.

After plaintiff spoke out against racial discrimination in the workplace, he got on the phone with a supervisor, who had been one of the targets of plaintiff's complaints. When the call ended, plaintiff was out of a job. The question is how his job ended. The supervisor testified that plaintiff resigned his position. Plaintiff said at deposition and in his summary judgment affidavit that he never resigned. But he never affirmatively testified that he was fired, as in, "I was told my services were no longer needed," or that "I was fired." Should a jury decide if plaintiff was fired? The Court of Appeals (Lynch, Parker and Livingston) says this issue is not suitable for trial. Here is how the Court resolves this issue:

Ware contends that a material issue of fact exists as to whether Jardee terminated his employment during this conversation or whether Ware resigned. He asserted at his deposition that he “thought [he] was terminated” by Jardee and that he “never resigned.” But he also testified that he was “honestly . . . not sure” how his employment ended. Id. Apart from his own equivocal statements during his deposition, there is no other evidence that Ware was terminated. 

After their phone call, Jardee emailed, “Roy, Per our recent telephone conversation on December 22 we accept your resignation of employment effective immediately.” The subject line of the email was “Resignation.” Ware replied, “Yes you will here [sic] from my lawyer soon Todd for your discrimanation [sic] and unethical treatment towards me as a L-3 employee.” Although Ware argues now that he did not understand at the time that he was saying “yes” in response to an email stating that he resigned, such testimony is, absent any other support in the record, self-serving and inconsistent with the evidence. See Rivera v. Rochester Genesee Reg’l Transp. Auth., 743 F.3d 11, 22 (2d Cir. 2014) (citing Jeffreys v. City of New York, 426 F.3d 549, 555 n.2 (2d Cir. 2005)).

The email evidence is interesting because I argued the "yes" was the equivalent of a verbal tick where you say something without really meaning it, as in normal conversation, and that it cannot by itself foreclose a trial or that he was conceding that he had resigned. The Court of Appeals disagreed, further noting that right after the call, the supervisor told others in management that plaintiff had resigned his position.