A saleswoman in a clothing store who quit after she was allegedly berated by a manager over her bipolar disorder could not show that she was constructively discharged in violation of the Americans with Disabilities Act (ADA), the 11th U.S. Circuit Court of Appeals ruled.
Cary Menzie, who suffered from bipolar disorder, was hired on March 21, 2010, as a part-time sales lead in an Ann Taylor store. She did not mention her condition. Menzie claimed she was frequently told she was doing well, but management disagreed. After Menzie had been on the job for a couple of weeks, a supervisor, Carolyn Lang, counseled her, and there seemed to be some improvement. But then there were new complaints. Management decided to outline the concerns for Menzie and give her the opportunity to step down to a sales-associate position, which might better suit her abilities. Menzie’s disorder never came up during these discussions.
Menzie met with Lang on April 21 to discuss the performance complaints. Menzie alleged she was subjected to a 45-minute tirade, in which she was berated and called unqualified, dishonest and deficient because of her disorder. Lang claimed she first learned of Menzie’s condition during this meeting. At that time, she gave Menzie the choice of either stepping down to the sales-associate position or remaining a sales lead with a 95 percent chance she would eventually be fired. Lang also told her that, because of her condition, she would be working only 13.5 hours the following week. Menzie decided to continue working in the store, although it is unclear whether she said she would accept the demotion. But a few days later, Menzie resigned and pursued a lawsuit. The district court awarded summary judgment to the retailer.
All parties agreed that Menzie had established two of the three prongs of a disability-discrimination claim, and the sole issue was whether she suffered an adverse employment action because of her disability. Menzie alleged that being assigned to work 13.5 hours the week after the April 21 meeting was an adverse employment action. While the court agreed that this could qualify as such in some cases, it did not in this case because 13.5 hours was more than she had been assigned the week before the meeting; moreover, records revealed that the company had a practice of widely varying employees’ hours from week to week.
Menzie also argued that her decision to quit was a constructive discharge because no reasonable person could accept the choice she was given between a demotion and the near certainty of being fired in the future. The company argued that the supervisor’s alleged conduct at the meeting was not severe enough to make Menzie’s working conditions intolerable.
The court agreed with the retailer that the hours the plaintiff was assigned were well within normal company practice. Additionally, the court held that in order to establish a constructive discharge, Menzie would have to show pervasive conduct by her former employer. She had pointed to just a single incident at one meeting, and it was insufficient to establish the pervasive conduct necessary for constructive discharge. Consequently, the court affirmed the grant of summary judgment.
Menzie v. Ann Taylor Retail Inc., 11th Cir., No. 13-11277 (Dec. 11, 2013).
Professional Pointer: Good record-keeping can defeat what at first may look like problematic evidence. In this case, the low number of work hours appeared suspicious until the entire record was reviewed.
Linda H. Evans is an attorney at Neel, Hooper and Banes, P.C., the Worklaw® Network member firm in Houston.