Tuesday, June 12, 2012

Constructive discharges cannot exist in a vacuum of illegality

A constructive discharge occurs when an employer’s actions make an employee’s working conditions so intolerable that a reasonable person under the circumstances would feel compelled to resign. Usually, a constructive discharge arises in the context of a discrimination lawsuit, satisfying the “adverse action” necessary to support the claim.

What happens, though, when there is no connection between the resignation and the law alleged to have been violated. Can an employee claim that a constructive discharge occurred in this vacuum? Kemper v. Springfield Twp. (Ohio Ct. App. 6/6/12), says no.

Patrick Kemper worked as a patrolman for the Springfield Township police department. The department had a formal policy requiring employees to submit a written request, and receive written permission, before engaging in outside work. Kemper planned to start a side security business. He discussed the idea with his supervisor, Chief David Heimpold, who told him that there would have to be precautions to prevent any conflict with police business. A few months later, Kemper submitted a letter to the department misstating that Heimpold had given permission to operate the business. When the township administrator, Michael Hinnenkamp, confronted Kemper with his lie, and with the prospect of an internal investigation, likely termination, and the loss of his pension and benefits, he resigned.

Kemper sued, claiming a constructive discharge related to an FMLA leave he was taking at the time. The jury awarded Kemper $491,000. The court of appeals agreed that the township had constructively discharged Kemper:

Hinnenkamp let it be known that any disciplinary proceeding would in all likelihood end in termination and that Kemper would lose his pension and other benefits…. Kemper had reasonably believed termination to be a foregone conclusion….

The court concluded, however, that the constructive discharge was lawful: 

But our inquiry does not end with the conclusion that Kemper produced sufficient evidence with respect to the alleged constructive discharge. A plaintiff must also establish a connection between the exercise of FMLA rights and the adverse employment action…. All of the evidence demonstrated that Kemper’s acknowledged dishonesty was the basis for the challenged discharge. There was no threat of discipline prior to the letter submitted to Heimpold and no indication in the record that Kemper's absences—or the conditions that led to those absences—bore any relationship to the adverse employment action.

Employees resign all the time, sometimes for reasons related to poor treatment by their employers. As this case makes clear, unless that poor treatment is connected to protections provided by the law, the resignation cannot form the basis for a lawsuit.