Age-Discrimination Claim over Retirement Advances

By Roger S. Achille June 16, 2020
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​The 2nd U.S. Circuit Court of Appeals let a former employee proceed with her age-discrimination claim upon finding evidence that her retirement was coerced by the threat of likely termination, thereby constituting a forced departure, or a "constructive discharge."

The plaintiff worked as one of two full‐time employees in East Haven Police Department's (EHPD's) records division. In 2012, the town hired a co-worker, approximately 30 years old, to work in the records division with the plaintiff, who was 58. Soon thereafter, the plaintiff alleged that she began to experience treatment from her supervisor and the chief of police that was intended to create a hostile work environment and cause her to retire. The plaintiff felt marginalized in her role, claiming that her younger co-worker was given more-desirable work assignments and training opportunities.

On Dec. 5, 2014, the plaintiff went to the EHPD kitchen to borrow a wire basket that was kept there so she could use it at an upcoming holiday party. While there, she observed two canisters of buttermilk biscuits dough that she had seen in the refrigerator since Thanksgiving. She put one of the canisters and the basket in her tote bag and took them back to her desk.

Later that day, a lieutenant sent an e-mail to employees asking whoever was in possession of the biscuits to return them to their rightful owner. The plaintiff then went into the kitchen, carrying the biscuits in a bag, intending to return them. When she arrived in the kitchen, the chief was there and the refrigerator was sealed with yellow ʺcrime sceneʺ tape. The chief asked the plaintiff what was in her bag. She responded, "Only salad." The chief then looked in the bag and saw the canister of biscuits.

The plaintiff explained that she had intended to bake the biscuits at home and bring them back for staff, but the chief wasn't persuaded. At the plaintiff's desk, the chief asked what was in her tote bag. The plaintiff showed him the wire basket and explained that she was borrowing it for a holiday party. She was immediately placed on administrative leave with pay.

An internal affairs officer investigated potential code of conduct violations by the plaintiff. The officer interviewed her, in the presence of her union representative, and she admitted to taking the biscuits and the basket without permission. The internal affairs report concluded that the plaintiff had engaged in ʺpremeditated theftʺ by ʺpurposely concealing the canister of biscuits and the basket." A hearing into the charges was scheduled. Prior to the hearing, after receiving advice from her union representative, who had met with town representatives and the chief, the plaintiff resigned.

[SHRM members-only toolkit: Involuntary Termination of Employment in the United States]

The town contended that because the plaintiff had opted to resign rather than participate in a hearing, she could not establish that she had suffered an adverse employment action. The plaintiff disputed the claim that she had voluntarily resigned, arguing that she had essentially been forced to resign because she was told that if she did not, she would be fired.

A plaintiff makes an initial showing of an adverse employment action if a rational juror could infer that the employer made her working conditions, viewed as a whole, ʺso difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign.ʺ

Viewing the evidence in a light most favorable to the plaintiff, the 2nd Circuit determined that one could "rationally find that an employee in the plaintiff's shoes would have felt compelled to submit her resignation stating that she was retiring, rather than face nearly certain termination." The court noted that the plaintiff admitted taking the items without permission; admitted initially lying to the chief; was caught by the chief in that lie; was found in the investigation to have stolen items premeditatedly and to have attempted to conceal the theft; was told by the internal affairs officer that the chief and others no longer trusted her and did not want her to continue working at EHPD; was advised by the internal affairs officer that she ʺlikely would be firedʺ and that if she could resign or retire, she ʺshould do soʺ; and was advised by her own union representative that she would ʺalmost certainlyʺ lose at a hearing. 

Green v. Town of East Haven, 2nd Cir., No. 18‐0143 (March 10, 2020).

Professional Pointer: Internal complaint procedures are most effective when managers maintain confidentiality and allow the process to function.

Roger S. Achille is an attorney and a professor at Johnson & Wales University in Providence, R.I.

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