Austin Court of Appeals Affirms Summary Judgment on Constructive Discharge Claim
When employees quit, rather than being fired, they can still sue for wrongful termination under a constructive discharge theory. However, the legal standard for constructive discharge is high. This is illustrated by Gardner v. Abbott, No. 03-12-00680-CV (Tex. App. -- Austin 2013, no pet.) (now reported at 414 S.W.3d 369).
Gardner was a state employee who worked in a call center. He resigned his position, then filed suit asserting constitutional claims based on the allegation that he had been harassed based on his sexual orientation. In particular, he claimed that the harassment had forced him to resign, so that he had been constructively discharged. The trial court granted summary judgment against Gardner on that claim, and he appealed. The Austin Court of Appeals began by summarizing the law of constructive discharge:
For remedial purposes, constructive discharge is functionally the same as an actual termination. In determining whether an employee was constructively discharged, the issue is whether "'the employer makes conditions so intolerable that a reasonable person in the employee's position would have felt compelled to resign.'" "The test is objective; the question is not whether this employee felt compelled to resign, but whether a reasonable employee would have felt so compelled." (Citations omitted).
The court noted that various circumstances are relevant to a constructive discharge claim:
Those factors include: (1) demotion; (2) reduction in salary; (3) reduction in job responsibilities; (4) reassignment to menial or degrading work; (5) badgering, harassment, or humiliation by the employer calculated to encourage the employee's resignation; and (6) offers of early retirement that would make the employee worse off whether the offers were accepted or not. In addition, evidence that an employee was forced to choose between resigning or being fired may be sufficient to raise a fact issue regarding constructive discharge. (Citations omitted).
The court also noted that, when a constructive discharge claim is based on a hostile work environment, the plaintiff must do more than simply proving the existence of a hostile work environment:
In Suders, the United States Supreme Court explained that when an employee claims to have been constructively discharged due to an abusive work environment, the constructive-discharge claim "entails something more" than is required to establish the existence of a hostile work environment. More specifically, the Court stated, "A plaintiff who advances such a compound claim must show working conditions so intolerable that a reasonable person would have felt compelled to resign." The Fifth Circuit has explained that this means that, "[t]o prove constructive discharge, the plaintiff must demonstrate a greater severity or pervasiveness of harassment than the minimum required to prove a hostile working environment." (Citations omitted).
Applying that standard, the court found Gardner's circumstances to be insufficient to establish a constructive discharge. The court observed that Gardner had alleged only badgering and harassment:
In the present case, there is no evidence of demotion, a change in job responsibility, or that Gardner was given a Hobson's choice between termination and resignation. There is likewise no allegation of a reduction in salary or benefits; indeed, the uncontroverted evidence establishes that Gardner's salary was actually increased after he says Elliott learned of his sexual orientation and that the increase was based on Elliott's recommendation. Rather, Gardner's argument is principally that he was badgered, harassed, or humiliated by Elliott based on his sexual orientation and in a manner calculated to encourage his resignation. He also complains that he was not informed about the results of any investigation into his August 2008 complaint regarding being written up for excessive idle time and absences from his desk.
The court found that the evidence of harassment was not sufficient to give rise to a constructive discharge:
Considering the foregoing circumstances cumulatively, we hold that there is no more than a scintilla of evidence that Gardner was constructively discharged. Considering the frequency, severity, and nature of Gardner's complaints, there is no evidence that the Tyler Call Center was permeated with discriminatory intimidation, ridicule, and insult. There is likewise no evidence of conduct that was physically threatening or humiliating, and no evidence that Gardner's work performance was impeded in any manner. In short, there is legally insufficient evidence of work conditions so intolerable that a reasonable person in Gardner's position would have felt compelled to resign. Indeed, Gardner's allegations are less severe and pervasive than the circumstances in other cases in which courts have found insufficient evidence of a hostile work environment, much less a constructive discharge.
Accordingly, the court affirmed the summary judgment in favor of the State.
The lesson from this case is that only extreme harassment will suffice to create a triable issue on constructive discharge. It is essential for a plaintiff to identify other factors, such as an adverse change in working conditions, to support such a claim.
David C. Holmes is a Houston employment lawyer with The Law Offices of David C. Holmes