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Best Ohio Wrongful Termination Attorney Answer: Should I quit if I am being harassed or discriminated against? What should I do if my boss is making my job so intolerable but won’t fire me? What is a constructive discharge?

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If you think about it, there really are only four possible “end games” to a situation in which an employee is being sexually harassed or discriminated against at work unlawfully (based on race/color, religion, gender, pregnancy, national origin, age, disability discrimination). First, and most common, is when the employee is wrongfully terminated. Second, the employee who is the victim of harassment and discrimination could decide that they have no choice but to quit. Third, the harassment and discrimination could continue on and on, with no end in sight. Fourth, the harassment and discrimination could stop, although this is highly unlikely.

If you are an employee who is being subjected to ongoing work place harassment and discrimination, it may eventually lead to you being fired, or you will eventually have to make the choice to stand up and do something about it. For many employees, this may lead them back to the second scenario, in which they are forced to quit. However, because there are many pitfalls to “constructive discharge” claims, it is important that you call the right attorney before you decide to quit. (See What Damages Do I Get In Wrongful Termination Cases?; Do Women Have To Accept An Existing Sexist Work Culture?; Can I Sue My Employer If My Boss Made Racist Comments?; How Do I Prove Age Discrimination?; and My Job Won’t Give Me A Religious Accommodation!)

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A constructive discharge occurs when an employer’s actions make an employee’s working conditions so intolerable that a reasonable person under the circumstances would feel compelled to resign. In essence, a constructive discharge is just another type of termination. An employee who is constructively discharged can sue their employer under a theory similar to wrongful termination, because either constitutes an “adverse employment action.”

However, as well established as the law concerning constructive discharge is, some courts still get it wrong. Take the recent case of Hurtt v. International Services, Inc. In Hurtt, the employee argued that he was constructively discharged when International Services, Inc (“ISI”) drastically changed his pay and reimbursement arrangements – a day after he requested leave under the Family and Medical Leave Act (“FMLA“) for his disability, acute depression and anxiety and well as for disability accommodations under the Americans with Disabilities Act (“ADA“).

As our employment lawyers have blogged about before, employers cannot retaliate against employees for exercising their rights under the FMLA. (See Do I Have A Claim For FMLA Retaliation?; Are Liquated Damages Mandatory In FMLA Retaliation Cases?; What Can I Do If I Was Fired For Taking Approved FMLA Leave?; Can My Boss Write Me Up For Taking Medical Leave?; Can My Job Block Me From Coming Back From FMLA Leave?).

Despite well established precedent regarding constructive discharge as an adverse employment action, the United States District Court for the Eastern District of Michigan in Hurtt nonetheless looked at one case in which a plaintiff had failed to show enough evidence to demonstrate that they had been constructively discharged, and concluded summarily that “a plaintiff cannot use a claim of constructive discharge to establish an adverse employment action” while granting the employers motion for summary judgment. Obviously, the employee appealed.

The Sixth Circuit Court of Appeal (which also covers Ohio) was quick to point out the trial court’s error:

As an initial matter, we address the use of a constructive discharge claim as a means to show an adverse employment action. In obvious contradiction to Sixth Circuit precedent, the district court improperly held that “a plaintiff cannot use a claim of constructive discharge to establish an adverse employment action.” (R. 50, Order, Pg ID 1225). As support for this proposition, the district court cited Regan v. Faurecia Auto. Seating, Inc., 679 F.3d 475, 480-81 (6th Cir. 2012). But Regan does not stand for this broad assertion. In Regan, the plaintiff alleged that her resignation following her employer’s denial of her work schedule shift request constituted a constructive discharge. Id. at 481. The plaintiff asserted that the constructive discharge constituted an adverse employment action, which would establish a prima facie case for gender discrimination. Id. This Court found that the plaintiff had not “put forth evidence showing that [her employer] `deliberately created intolerable working conditions, or that there was any intention that the [new work schedule] was designed to force [plaintiff] to quit,” as required to show a constructive discharge. Id. at 482. As such, this Court found that plaintiff could not “use a claim of constructive discharge to establish an adverse employment action for purposes of demonstrating [her] gender discrimination.” Id. (emphasis added).

The outcome in Regan was based the facts of that case. It did not hold, as a matter of law, that the use of a constructive discharge to establish an adverse employment action was impermissible or contrary to Sixth Circuit precedent. Indeed, this Court has repeatedly held to the contrary. See Talley v. Family Dollar Stores of Ohio, Inc., 542 F.3d 1099, 1109-10 (6th Cir. 2008) (reversing summary judgment on plaintiff’s ADA constructive discharge claim); Saroli v. Automation & Modular Components, Inc., 405 F.3d 446, 451 (6th Cir. 2005) (recognizing plaintiff’s claim of a constructive discharge as an adverse employment action); Smith v. Henderson, 376 F.3d 529, 533 (6th Cir. 2004) (analyzing whether plaintiff suffered an adverse employment action via her claim of a constructive discharge); Logan v. Denny’s, Inc., 259 F.3d 558, 568 (6th Cir. 2001) (“Plaintiff may establish an adverse employment action by demonstrating that she was constructively discharged.”). Thus, although already well established, we hold once more today that a plaintiff may use a constructive discharge claim to show that he or she has suffered an adverse employment action.

Thus, if there was any ever doubt, constructive discharge remains a viable cause of action in the Sixth Circuit today. In so holding, the Sixth Circuit reversed the summary judgment by the trial court and remanded the case for a jury trial:

The district court’s analysis of Hurtt’s disability discrimination claims was cursory at best. It determined that Hurtt could not show that he suffered an adverse employment action, and presumably a constructive discharge, because (1) he did not report to work on September 5, 2012 (the date his psychotherapist released him to return to work); and (2) ISI did not interfere with Hurtt’s leave on September 4, 2012. It is not clear from the district court’s order why Hurtt’s failure to report to work on September 5, and ISI’s lack of interference with Hurtt’s leave, would belie his claim of a constructive discharge. It appears the district court attempted to rely on these two facts to conclude that Hurtt had not suffered an adverse employment action, but rather, voluntarily quit when he failed to show up for work on September 5. But these facts alone are not fatal to Hurtt’s claim. Indeed, evidence in the record shows that Hurtt was still employed by ISI after September 5—after his draw was revoked. The record also shows that ISI processed Hurtt’s FMLA leave request through September 10, and this paperwork was submitted to Dr. Sharnowski on September 10. … And, a September 11 email to Mr. Hurtt from an employee in the Employee Benefits department inquired as to Hurtt’s intentions of returning to his schedule. Moreover, Brewer testified in her deposition that she had numerous conversations with Hurtt after September 5, in an effort to figure out a date for him to return to ISI. … Finally, on September 18, Hurtt’s attorney sent ISI a letter notifying ISI that Hurtt would not be returning to work. … Jon Andes, ISI’s Director of Human Resources, testified that he considered September 18 to be Hurtt’s resignation date and coded Hurtt’s last employment date as such. … Accordingly, the conclusion that Hurtt voluntarily quit on September 5 is hardly undisputed. Quite the contrary, the evidence is sufficient to raise a genuine issue of material fact as to Hurtt’s disability discrimination claim.

If you are searching “I need a lawyer because I have been wrongfully fired or terminated;” or “I have been discriminated against based on my …” race, national origin, gender, age, religion or disability; or even think that you might need an employment lawyer, then it would be best to call the right attorney to schedule a free and confidential consultation at 866-797-6040. Spitz, The Employee’s Law Firm and its attorneys are experienced and dedicated to protecting employees’ rights and solving employment disputes.


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