Court Clarifies Constructive Discharge Test

In order to prevail on a constructive discharge claim, an individual must show both that the employer acted in a way that would communicate to a reasonable worker that her employment would be terminated imminently and that the employee’s working conditions had become intolerable, the 7th U.S. Circuit Court of Appeals ruled.

Margaret Wright was employed as a caseworker for the Illinois Department of Children and Family Services from 1982 to 2007. After one of the children assigned to Wright had a dangerous outburst, the department determined that Wright’s conduct posed a risk to the child and took Wright off the child’s case. The department also required Wright to have a fitness-for-duty evaluation to determine whether she was emotionally and mentally fit to perform her job. Wright refused to go for the evaluation and, as a result, the department disciplined Wright for insubordination.

Wright filed a grievance with her union, and after a predisciplinary hearing, the department suspended Wright without pay for 15 days. The department again required Wright to have a fitness-for-duty evaluation, Wright again refused and the department issued Wright her second insubordination charge. Wright again filed a grievance and was provided a predisciplinary hearing. Though Wright did not attend the hearing, a union representative provided a rebuttal on her behalf.

Before the department had determined what disciplinary action to impose for Wright’s insubordination, Wright took a 10-day vacation. On the day she returned from vacation, she submitted papers for early retirement. The department ceased the disciplinary process and never issued any further discipline.

Wright then sued the department alleging, among other things, violations of the Americans with Disabilities Act based on the department’s order that she undergo a fitness-for-duty evaluation, resulting in her constructive discharge.

A jury returned a verdict for Wright concluding that Wright was constructively discharged, but the district court granted the department’s motion for judgment as a matter of law based on an improper jury instruction on the constructive discharge issue, and a second trial was held. At the conclusion of the second trial, the department again moved for judgment as a matter of law. The district court held that Wright failed to prove constructive discharge because she did not establish that her working conditions were intolerable.

The 7th Circuit affirmed the judgment of the district court and held that Wright failed to show constructive discharge because she did not prove 1) that the department acted in a manner that would communicate to a reasonable person in Wright’s position that termination of her employment was imminent, and (2) that her working conditions were intolerable. The court emphasized that the standard is whether a reasonable person in the employee’s position would have believed she was about to be fired. To meet this standard, an employee must show that the employer’s actions communicated to the employee that she would immediately and unavoidably be terminated. The court found that the fact that Wright might have been discharged at the conclusion of the disciplinary proceedings did not amount to a constructive discharge.

Wright v. Ill. Dep’t of Children and Family Services., 7th Cir., No. 13-1552 (Aug. 14, 2015).

Professional Pointer: Though the two-pronged standard for constructive discharge is a difficult one for employees to meet, employers can reduce their risk of liability by carefully considering what level of discipline to impose for employee misconduct, clearly communicating with employees about disciplinary action and performance expectations, and documenting these discussions in writing in each employee’s personnel file.

Violet H. Borowski and Colleen G. DeRosa are attorneys in the Chicago office of Ogletree Deakins, a labor and employment law firm representing management.