Constructive discharge and termination of employment

by on May 28, 2009 · 0 Comment POSTED IN: HR Info Center

Termination of employment is for performance and behavior not retaliation for FMLA leave

“Roger has been all over my case ever since I took that FMLA leave for stress,” sales rep Tina Bertolli said. “He must have told me a dozen times that my performance is unacceptable and that I’m in danger of termination of employment, but when I ask for help, he ignores me.” HR manager Steve Simpkins frowned. “Roger’s a tough supervisor, no question,” he said. “But I’ve always known him to be fair. If he says your work isn’t up to snuff, I tend to believe him.” “Fair?” Tina exploded. “He makes me attend special meetings to go over my numbers, which nobody else has to do even when they’re below quota. “Sometimes the Sales VP comes in and adds to the negative tone, telling me I’m letting the company down,” Tina added. “I feel totally singled out. And when I tried to get a private meeting with the VP, Roger screamed at me not to go over his head.”

She walks out
“What I came in here to ask you is, are you going to do something about this?” Tina asked. “Because if you’re not, I don’t see how I can continue.” “Are you saying you want to resign?” Steve queried. “I don’t know,” Tina said. “Maybe I could take more leave or something. What I do know is that I can’t work with Roger anymore.” “Tina, I want to be very clear that there are no plans for termination of employment” Steve said. “If Roger is being hard on you, it’s because he wants his team to perform at a high level. “So if you quit, that’s up to you,” Steve said. “We’re not chasing you out the door.” Tina stood up and put her laptop on Steve’s desk. “I’m outta here,” she said, and walked out. Later, Tina sued the company, claiming it retaliated against her for taking FMLA leave. Did she win?

Yes, Tina won the first round of legal battle when an appeals court said her lawsuit was strong enough go to trial. The company claimed it couldn’t have retaliated against Tina, because it didn’t take any adverse action. The company argued that there was no termination of employment, but instead she resigned. But the court said Tina presented evidence she was constructively discharged. This means her work conditions were so intolerable she had no choice but to quit.

A clean termination of employment
It’s not HR’s job to interfere with supervisors’ efforts to instill a strong performance ethic in their reports. But it is HR’s jobs to make sure individuals aren’t singled out in ways that can trigger disability discrimination or retaliation charges. It’s also up to HR to make sure any termination of employment is done cleanly as a result of performance so substandard as to warrant it. As this case shows, an employee who walks out under pressure can come back later and claim his or her termination of employment was involuntary.

Cite: Strickland v. UPS, No. 07-1082, 10th Cir., 2/24/09. Fictionalized for dramatic effect.

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