Wednesday, March 11, 2020

Stolen biscuits give rise to expansive constructive discharge ruling

I would say that constructive discharge claims are among the most difficult claims to win under Title VII. The courts have settled upon this legal standard for plaintiffs to show that their resignations are the legal equivalent of terminations for purposes of making out a prima facie case: "A plaintiff may prove a constructive discharge by establishing that his employer, rather than acting directly, deliberately ma[de his] working conditions so intolerable that [he was] forced into an involuntary resignation." That is very high burden, and few plaintiffs in the Second Circuit meet that standard. This plaintiff does.

The case is Green v. Town of New Haven, issued on March 10. Plaintiff worked in the records division of the police department. One day, she noted that someone's biscuit dough had been sitting in the office refrigerator for a few weeks. The dough did not belong to plaintiff, but she placed it in her bag and took it back to her desk. A lieutenant who had nothing better to do with his time immediately noticed that the biscuit dough was missing and sealed the refrigerator with yellow "crime scene" tape. He also sent employees an email complaining that the biscuits "grew legs and walked away." Plaintiff was given the third-degree over this, and she was written up on disciplinary charges. It may seem like I am making this up, but I can assure you that I am not. When confronted about this high crime and misdemeanor, plaintiff said she was going to bake the biscuits at home and bring them into the office for everyone. Internal affairs even prepared a report on the incident. You would think that plaintiff would prevail at her civil service hearing (or at least escape termination), but on the day of the hearing, plaintiff's union representative advised plaintiff that, based on his conversation with Town representatives, and pursuant to a "disciplinary matrix" that was in place since the department was functioning under a consent decree, plaintiff would going to be terminated. She resigned instead.

Since plaintiff had also proffered evidence of age discrimination, she claims the termination was involuntary. The district court disagreed and said this was not a constructive discharge. The Court of Appeals (Kearse, Chin and Wesley) says a jury may find otherwise. While most plaintiffs fail to convince the Court of Appeals that their resignations were constructive terminations, the Second Circuit notes that, over 30 years ago, it stated that a plaintiff could make out such a claim where his supervisor "told him he would be fired at the end of the 90‐day probationary period no matter what he did to improve his allegedly deficient performance." That case was Lopez v. S.B. Thomas, 831 F.2d 1184 (2d Cir. 1987). The Court notes that "our Lopez opinion indicated that a constructive discharge could properly be found where an employer merely, albeit 'clearly[,] expressed his desire that [an] employee resign because such a statement' could cause a reasonable person to feel compelled to resign." In another case, the plaintiff could not prevail because he was unable to show that 'the employer 'never mentioned retirement to Stetson and never either expressly or impliedly suggested that Stetsonʹs employment would be terminated.ʺ That case was Stetson v. NYNEX Service Co., 995 F.2d 355 (2d Cir. 1993).

Plaintiff can prove constructive discharge because a knowledegable source -- a union representative -- told her she was going to lose the hearing. The Department's Internal Affairs Officer also told plaintiff that the department no longer trusted her and did not want her working there anymore, and that stealing from the department was a terminable offense. The Court of Appeals says, "If any relevant facts are in dispute or subject to competing inferences as to their effects, or if there is admissible evidence from which a rational juror could infer that a reasonable employee would have felt so compelled, rejection of the constructive‐discharge theory as a matter of law is impermissible."

While the district court said in rejecting the case that no one with decisionmaking authority told plaintiff she was going to be terminated, the Court of Appeals states, "While the identity of the person delivering a termination threat or prediction and the level of certainty expressed in such a threat or prediction are considerations for a factfinder to weigh, neither an absolute statement nor a direct communication by an ultimate decisionmaker is a sine qua non for evidence of a constructive discharge."  The Court wraps up its analysis this way:

This outright dismissal as to any value or effect of advice from the union representative seems to indicate the courtʹs belief that, despite having received an I.A. officerʹs informed view that she has committed a fire‐able offense, a reasonable employee, as a matter of law, cannot feel compelled to resign rather than insist on a hearing when her union representative‐‐who is presumably looking after her interests‐‐makes an ʺeducatedʺ prediction that she is almost certain to lose in the hearing. We know of no authority supporting such a principle of law. And to the extent that the court found the union representativeʹs advice ʺunavailingʺ simply as a matter of fact‐‐i.e., as outweighed by other evidence as to what a reasonable employee in Greenʹs shoes ʺwouldʺ have felt compelled to do ‐- the court so found by impermissibly conducting its own weighing of the evidence and by drawing all inferences adversely to Green.



No comments: