Seek Counsel Before You Quit!
An employer must subject an employee to what most courts call an “adverse employment action” before the employee can pursue an employment discrimination claim. However, in limited circumstances, an employee who quits may successfully claim he or she was “constructively discharged”, rather than terminated. An employee may state a claim for constructive discharge by showing:
1) the employer intentionally created intolerable working conditions;
2) a reasonable person would find the working conditions intolerable; and
3) the employer created the intolerable working conditions with the intention of forcing the employee to quit.
This standard is difficult to satisfy. The Fifth Circuit recently reminded employees of the high standard for constructive discharge in Perret v. Nationwide Mutual Insurance Company. The two plaintiffs in Perrett v. Nationwide Mutual Insurance Company, Perrett and Pierre, were insurance sales managers for Nationwide. They were also the two oldest managers in the region, and Pierre was the only African-American manager in his region. Although the plaintiffs were near the top in sales for their region, Nationwide placed them on performance coaching plans. The plaintiffs claimed the coaching plan was based on minor or trivial performance issues that were vague and subjective. They also claimed the plans did not comply with company policy. Approximately five months later, Nationwide notified Perret that he failed to improve in accordance with the coaching plan and that Nationwide was placing him on a performance improvement plan. Although Perret qualified for a bonus for meeting his first quarter sales goals, Nationwide withheld the bonus. Perret resigned in May 2010. Pierre was also placed on a performance improvement plan around April 2010. He took medical leave for over two months before resigning in July 2010.
Subsequently, the plaintiffs filed suit in federal court. Perret claimed Nationwide imposed the coaching plan and the performance improvement plan because of his age, and he was singled out for termination because he was one of the oldest managers in the region. Similarly, Pierre claimed the coaching plan and the performance improvement plan were imposed because of his age and his race, and he was singled out for termination because he was one of the oldest managers and the only African-American manager in the region. At trial, the jury found that Nationwide constructively discharged Perret because of his age and Pierre because of his age and race. On appeal, the Fifth Circuit found there was insufficient evidence of constructive discharge to support the jury verdict. The Fifth Circuit instructed the district court to enter judgment in favor of Nationwide.
This case reflects the challenge of claiming constructive discharge. Although a jury found the plaintiffs had been constructively discharged, the court of appeals held the evidence did not support the finding. If you feel you are being discriminated against in your employment, an employment lawyer may be able to help you before litigation becomes necessary. Before you quit, call our trusted employment lawyers at Robert A. Klingler Co., L.P.A. to discuss your potential rights and remedies.