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Library Law: Constructive Discharge
By Gerard E. Dempsey and Janet N. Petsche
August 1, 2006

Whether an employee says “I quit,” and walks off the job, or provides a written resignation, he or she may ordinarily be assumed to have voluntarily resigned his or her position; however, library supervisors and administrators should be aware that if the employee was, or thought he or she was, subjected to discrimination at work, the library could be served with a post-resignation lawsuit asserting “constructive discharge.” In this scenario the ex-employee would be claiming that by perpetrating or allowing the discrimination, the library had coerced his or her resignation.

A constructive discharge occurs when an employee is legally justified in claiming that he or she was compelled to resign because the employer has made working conditions intolerable. For example, if an employee resigns because the employer was unresponsive to a harassment complaint, the employee might allege constructive discharge as part of a subsequent harassment claim against the employer.

As a practical matter, constructive discharge claims are fairly difficult to prove, especially when the employee has an at-will employment relationship with the employer. Employees must prove that their working conditions were in fact intolerable. Some courts also require the employee to give the employer an opportunity to correct the conditions prior to the resignation. In addition, many courts require the employee to show that the employer deliberately created intolerable working conditions with the intent of forcing the resignation. ^[1]

Courts generally assess the intolerability of working conditions by considering whether a reasonable person in the employee's position would have felt compelled to resign. For example, the Seventh Circuit Court of Appeals, the federal review court with jurisdiction over Illinois, ruled that the employee was constructively discharged because the employee had been forced to endure hostile environment sexual harassment. ^[2] After the employee complained about harassment by her employer, a judge, her supervisor suggested that she either resign or transfer to another judge who clearly implied he would make her life miserable. In addition, when she was involuntarily transferred back to work for her harasser, he was cold and uncommunicative and indicated that he would continue to express his sexual interest in her.

Similarly, the Eighth Circuit Court of Appeals (whose jurisdiction includes Arkansas, Iowa, and several other states in the upper Midwest) determined that the Federal Deposit Insurance Corporation (FDIC) constructively discharged a supervisor. ^[3] The FDIC stripped him of his job title and supervisory responsibilities, reassigned him to a less prestigious position of case manager, and told him that he could either accept the reassignment, retire, or be involuntarily separated. The Court of Appeals held that a long-term supervisory employee would reasonably find these actions intolerable.

In contrast, our Seventh Circuit Court of Appeals denied the constructive discharge claim of a university professor who was put on paid administrative leave and given a temporary, though unsatisfying, reassignment, pending investigation of sexual harassment allegations against him. ^[4] He then resigned rather than wait for the conclusion of the university's due process hearing procedures. The Court held that however distasteful his temporary assignment was, his working conditions had not become so intolerable that a reasonable employee in his position would have felt compelled to resign.

It is important to note that most courts consider the employee's subjective feelings or beliefs to be irrelevant. For example, the Tenth Circuit (whose jurisdiction covers the southwestern and western portions of the United States ) determined that the employee's claims of depression and feelings of isolation, which she attributed to her working conditions, were insufficient to prove that a reasonable person would have viewed the working conditions as intolerable. ^[5]

Employees with written contracts of employment have been more successful in proving constructive discharge when their employers unilaterally change the nature of their jobs. For example, the Nebraska Supreme Court upheld the jury's verdict finding that the employee was constructively discharged since the employer unilaterally imposed additional duties that were not within the scope of the employee's contract. ^[6] Similarly, the Tennessee Supreme Court ruled that the employer breached the employment contract and constructively discharged its marketing director when it removed his job title and all of his work responsibilities specified in the contract. ^[7]

In contrast, the Illinois Appellate Court held that a supermarket customer service manager who was demoted to cashier did not establish that she was constructively discharged in violation of the terms of an employment contract. ^[8] The Appellate Court stated that the company's employee manual did not constitute a legal contract and that the employee was in fact an at-will employee.

By reviewing all employee notices of resignation, both oral and written, with a qualified library law attorney, the library may be able to prevent constructive discharge claims that could result in liability under discrimination and anti-retaliation laws. In particular, the library and its attorney should examine the resigning employee's personnel file for recent demotions, changes in job duties, pay cuts, complaints filed, and other adverse employment actions that may have contributed to the employee's decision to quit. In addition, they should consider whether the library administrator should discuss the reasons for resignation with the employee in a formal exit interview, since the exit interview may help to discover any problems with the employee and to address the "real" reason for his or her resignation.

About the Authors

Gerard Dempsey and Janet Petsche are partners with the law firm of Klein, Thorpe & Jenkins, Ltd. which is an Illinois law firm with offices in the Civic Opera Building at 20 North Wacker Drive in Chicago and at 15010 S. Ravinia, Orland Park. The firm concentrates in the representation of local libraries, Library districts and Library systems, as well as other local governmental units.

Footnotes

^[1] See, e.g., Store v. Department of Human Rights, 299 Ill.App. 3d 306, 700 NE 2d 1105 (1998) and Raintree Health Care Center v. Human Rights Commission, 275 Ill.App. 3d 387, 655 NE 2d 944 (1995).

^[2] Robinson v. Sappington, 351 F.3d 317 (7th Cir. 2003). cert. denied, 124 S. Ct. 2909 (2004).

^[3] Tadlock v. Powell, 291 F.3d 541 (8th Cir. 2002).

^[4] Levenstein v. Salafsky, 414 F.3d 767 (7th Cir. 2005).

^[5] Heno v. Spring/United Mgmt. Co., 208 F.3d 847 (10th Cir. 2000).

^[6] Sanders v. May Broadcasting Co., 336 N.W.2d 92 (Neb. 1983).

^[7] Guiliano v. Cleo, Inc., 995 S.W.2d 88 (Tenn. 1999).

^[8] Ahlgren v. Blue Goose Supermarket, Inc., 266 Ill. App. 3d 154, 161-62, 639 NE2d 922 (1994).

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