A Review of Florida Constructive Discharge Claims

November 9, 2011

As many of Florida’s employment law attorneys know, the standard for constructive discharge is even higher than the standard for proving a hostile work environment.  See Hipp v. Nat’l Liberty Life Ins. Co., 252 F.3d 1208 (11th Cir. 2001).  See also Poole v. Country Club of Columbus, Inc., 129 F.3d 551 (11th Cir. 1997).  As stated by the Eleventh Circuit in Hipp, to prove constructive discharge, a plaintiff must show that the employment conditions were so intolerable that a reasonable person in the employee’s shoes would have been compelled to resign.  See also Pennsylvania State Police v. Suders, 542 U.S. 129 (2004) (“The inquiry is objective: Did working conditions become so intolerable that a reasonable person in the employee’s position would have felt compelled to resign?”)  As noted by the United States Supreme Court in Suders, the Circuit Courts of Appeal have recognized constructive discharge claims in a variety of contexts, such as pregnancy discrimination, sexual harassment and discrimination, age discrimination, and religious discrimination.  See Id. at 142 (collecting cases).

Under certain conditions, employers may be held vicariously liable for the acts of their supervisors.  See Suders, 542 U.S. 129.  However, when such a claim is raised, the employer may invoke the Ellerth/Faragher affirmative defense.  Under such affirmative defense, the employer has to show both that (1) “the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior;” and (2) that “the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.”  Suders, 542 U.S. at 145-146.  Because the Ellerth/Faragher borrows from tort law by requiring plaintiffs to “to stave off avoidable harm,” the employer/defendant has the burden of showing that the employee/plaintiff unreasonably failed to avoid or reduce harm.  See Id.

Some constructive discharge cases illustrate how just how terribly some employers can treat their employees.  See Suders, 542 U.S. 129 (female officer repeatedly sexually harassed by supervisor); Poole, 129 F.3d 551 (executive secretary who had been exposed to derogatory comments about her age over period of time had her office key taken from her possession under false pretenses and was eventually relocated, upon returning from a vacation, to  different “office”  with no furniture, and given no meaningful work to do); U.S. EEOC v. Massey Yardley Chrysler Plymouth, Inc., 117 F.3d 1244 (11th Cir. 1997) (plaintiff/employee who was repeatedly harassed about her age discovered, upon returning from five day vacation, that her employer placed an ad for her position without telling her).

However, just as with any employment discrimination claim, constructive discharge cases are intensely fact-driven, and can be difficult to prove.  See Hipp, 252 F.3d at 1231 ( reversing verdict in favor of plaintiff because evidence only showed that one individual had an amorphous policy in his own division; noting that pervasive conduct by the employer is required before the Court will find that a hostile work environment or constructive discharge occurred).  Although it may seem illogical in the context of hostile work environment/constructive discharge claims, employees would be wise to remain in their employment while they seek redress.  See  Sharp v. City of Palatka, 529 F. Supp. 2d 1354 (M.D.Fla. 2007) (finding that police officer failed to show that he was constructively discharged for his political speech; noting that even if the officer had proven that the assertions of misconduct were correct, the officer’s act of immediately quitting gave the employer no opportunity to remedy the situation); Suders, 542 U.S. at 147 (“[U]nless conditions are beyond ‘ordinary’ discrimination, a complaining employee is expected to remain on the job while seeking redress.”) (quoting Perry v. Harris Chernin, Inc., 126 F.3d 1010, 1015 (7th Cir. 1997)).

In these tough economic times, it may also be important to recall that merely working for less pay may not necessarily rise to the level of constructive discharge.  See Bourque v. Powell Elec. Mfg. Co., 617 F.2d 61 (5th Cir. 1980).  And, where claims of constructive discharge arise in the context of early retirement, employee buy-outs, or other employer-driven staff reduction measures, courts generally begin their analysis by determining whether the employer has made the staff reductions in a neutral manner, and may be hesitant to second guess business decisions.  See Rowell v. BellSouth Corp., 433 F.3d 794 (11th Cir. 2005) (finding that employee who took early retirement package failed to show age discrimination/constructive discharge; noting that until it’s evident that there is no objectively reasonable opportunity to remain employed, the employee cannot, as a matter of law, contend that he or she has been discharged.)

Filed under Age Discrimination, Employment Discrimination, Harassment, Pregnancy Discrimination, Religious Discrimination, Sex Discrimination, United States Court of Appeals for the Eleventh Circuit, United States Supreme Court Tagged with , , , ,

The Administrative Process for Florida Employment Discrimination Claims

October 21, 2011

Prior to filing any discrimination claim in civil court, whether it’s based on a violation of Florida’s Civil Rights Act of 1992, or the Federal Title VII, an employee must first file a complaint with either the Florida Commission on Human Relations, or the EEOC.  With regard to the EEOC, a Charge of Discrimination must be filed within 180 days of the occurrence of the discriminatory act.  However, the time limit can be extended to 300 days if a State or local agency enforces a law that prohibits employment discrimination on the same basis.  To start your claim with the EEOC, you can call 1-800-669-4000, and submit some basic information to the EEOC.  If you don’t want to call, you could complete an online assessment, print the Intake Questionnaire, and bring it or mail it to your local EEOC field office.   (The information for the Miami District office can be viewed here.)  Finally, you can send a letter to the EEOC containing the information listed here.   After receiving your letter, the EEOC may respond by sending you an official EEOC charge form.

After you file a claim with the EEOC, your claim may go into a mediation process, pursuant to which the EEOC tries to reach a settlement.  If no settlement is reached, the EEOC will likely attempt to quickly dispose of your claim based on untimeliness or lack of jurisdiction, or an inability to determine whether discrimination occurred.  If your claim is dismissed, you will be notified by the EEOC, and you’ll be free to commence a lawsuit in court.  If the EEOC decides to investigate your charge rather than dismissing it, witnesses will likely be contacted, and documents may be reviewed.  As with all government processes, EEOC investigations can take time.  Be prepared to wait up to 6 months for the investigation to be complete.  An EEOC mediation generally moves a little quicker, and may be concluded within 3 months.

If the EEOC finds that no discrimination occurred, you should receive a Notice-of-Right-to-Sue, which allows you to then file a claim in court, if you so choose.  If the EEOC finds that discrimination occurred, the EEOC may try to reach a settlement.  If a settlement can’t be reached, the EEOC may refer the case to its attorneys at the Department of Justice, who will then decide whether the EEOC will file a lawsuit.  If the attorneys decide not to file suit, the EEOC should send you a Notice-of-Right-to-Sue indicating that you have the right to file your own suit, so long as you do so within 90 days.

Florida’s administrative process is similar to that of the EEOC.  If you choose to file your claim with the Florida Commission on Human Relations, you’ll need to complete a TAQ (Technical Assistance Questionnaire), available here.  Be sure to file your claim within 365 days of the alleged violation.  Generally,  you can call, write, or visit the Commission on Human Relations to discuss the discriminatory acts with an Intake Counselor.  The Commission on Human Relations will then share the information with the EEOC pursuant to a worksharing agreement.  Most complaints lodged with Florida’s Commission on Human Relations are dual-filed with the EEOC.

Pursuant to Florida section 760.11(3), the Commission on Human Relations has 180 days (6 months) to determine whether there is reasonable cause to find discrimination.  If the Commission fails to act within the 180 day limit, the Commission is deemed to have found no reasonable cause.  If the Commission finds no reasonable cause, you can contest that finding by requesting a hearing within 35 days.  However, if the Commission determines that there is reasonable cause to believe that discrimination occurred, you can either file a civil action in court, or request an administrative hearing.  But be warned: according to Florida section 760.11(4), your selection of either the civil action or administrative hearing is your final remedy.  Be sure to consult Florida section 760.11(6) through (13) for more details on the administrative hearing.  A flowchart of Florida’s administrative process can also be found here.

Filed under Age Discrimination, Disability Discrimination, Harassment, Pregnancy Discrimination, Religious Discrimination, Sex Discrimination Tagged with , , ,

The EEOC Takes Aggressive Stance by Filing Four Discrimination Suits in Two Days

August 30, 2011

Attorneys who practice in the area of employment discrimination may be interested to know that the EEOC homepage shows that the Commission has filed four discrimination suits in the last two days.  In the cases, the EEOC asserts claims of religious discrimination, disability discrimination, and employer retaliation against various companies, including our country’s second largest automaker, Ford Motor Company.

In the case against SITA Information Networking Computing USA, Inc., an Atlanta air transport communications company allegedly discriminated against an employee by rescinding an offer of employment after learning that the newly hired employee would need accommodations because of cancer surgery.  As noted by the EEOC, shortly after accepting the offer of employment, the employee learned of her cancer diagnosis, and requested to have her start date moved.  The employee also requested permission to work part-time for the first two weeks.  In response, the employer rescinded the employment  offer.  According to Robert Dawkins, regional attorney for the EEOC’s Atlanta District Office, the “suit is being filed to ensure that employers understand that they have an obligation, short of incurring undue hardship, to provide a reasonable accommodation to employees.”

In the case against The Patty Tipton Company, a Lexington, Kentucky, Staffing Agency, the EEOC asserts that the agency refused to hire a job applicant because she insisted on wearing a long skirt, and refused to wear pants, for religious reasons.  The woman applied for a temporary position at the World Equestrian Games, and was denied the position after requesting her religious accommodation.  She was subsequently hired by another company that had no problem with her request for the religious accommodation at the World Equestrian Games.

In its case against Ford Motor Company, the EEOC alleges that instead of allowing an employee to participate in its telecommuting program as a reasonable accommodation for her medical condition, Ford began to criticize the employee’s performance, placed her on a “performance enhancement plan,” and then discharged her only months after she complained about being denied an accommodation.  According to the EEOC, “[f]ailing  to offer a reasonable accommodation to an employee and then discharging her under these circumstances is a clear violation of the ADA.”

Finally, the EEOC sued Pine View Living, Inc., an assisted living facility in Milwaukee, Wisconsin, for retaliation.  According to the EEOC, a resident assistant filed a complaint with the facility, stating that she had been discriminated against on the basis of race.  She was thereafter fired.  At the time it filed the case, the EEOC stated that “Federal law protects the right of employees to complain when they believe they have been the victims of employment discrimination . . . Here, the EEOC contends that Ms. Anderson was doing what she had a right to do, but Pine View chose to punish her rather than to fix the underlying problem.”

Filed under Disability Discrimination, Employment Rights, Religious Discrimination, Retaliation and Whistleblower Laws, Unlawful or Wrongful Termination Tagged with , , ,

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