In employment law, the term “constructive discharge” is used to describe a scenario in which, in sum, an employee is not terminated (i.e. discharged) directly by the employer, but rather that things got so bad that they were, in essence, “forced to quit.”
As recently explained by the court in Ingrassia v. Health & Hosp. Corp., No. 14 CV 1900 PKC, 2015 WL 5229444 (E.D.N.Y. Sept. 8, 2015):
A constructive discharge occurs when the employer, rather than acting directly, deliberately makes an employee’s working conditions so intolerable that the employee is forced into an involuntary resignation. The Second Circuit has found two components of this standard: the employer’s intentional conduct against the plaintiff and the intolerable level of the plaintiff’s work conditions. If a reasonable person subjected to the same conditions as the plaintiff would have felt compelled to step down, a claim for constructive discharge may proceed. The Court views Plaintiff’s allegations regarding her working conditions on a cumulative basis.
In Ingrassia, the court concluded that plaintiff sufficiently alleged constructive discharge by alleging
that she faced the following work conditions prior to her resignation: her supervisor’s reading of her medical records, the “tapping” of her work phone, movement of her office belongings and furniture upon her return from vacation so as to imply that Plaintiff was being punished, her supervisor yelling at Plaintiff “for no apparent reason,” and her supervisor humiliating Plaintiff by making “derogatory and insulting comments in front of the other office staff.”
As another example, the court in Batista v. DeGennaro, 2014 WL 1046735 (SDNY March 10, 2014) denied defendants’ motion to dismiss plaintiff’s constructive discharge claim against the New York City Department of Education. The court reasoned:
Plaintiff alleges plausibly that she was constructively discharged on the basis of her race and national origin. The Complaint alleges that Plaintiff received disciplinary write-ups for violations falsified by DeGennaro or for conduct that did not result in write-ups for non-Hispanic social workers. It further claims that DeGennaro spoke to her in an insulting manner, made fun of her accent, referred to the Dominican Republic as a “Spanish-speaking banana republic,” and “suggest[ed]” that she was “of inferior culture and background and does not belong to the American society.” Finally, it accuses Scope of telling Plaintiff that she was subject to “special scrutiny” and that her “days [were] numbered,” issuing negative evaluations, and interrupting her work to tell her not to speak Spanish. Scope’s alleged insistence that Plaintiff not speak Spanish does not, standing on its own, create an inference of race or national origin discrimination. In evaluating constructive discharge claims, however, “the effect of a number of adverse conditions in the workplace is cumulative.” Looked at cumulatively, Plaintiff’s allegations make it plausible that Defendants intentionally, and on the basis of Plaintiff’s race and national origin, made her work environment so intolerable that she was forced to quit.
Mere dissatisfaction with one’s workplace, however, is insufficient to establish constructive discharge.
For example, courts have also held that “a constructive discharge cannot be proven merely by evidence that an employee disagreed with the employer’s criticisms of the quality of his work, or did not receive a raise, or preferred not to continue working for that employer”, that the test is not “merely whether the employee’s working conditions were difficult or unpleasant”, and that “[a]n employee who fails to explore alternative avenues offered by [his] employer before concluding that resignation is the only option cannot make out a claim of constructive discharge.” Gorman v. Covidien, LLC, No. 13 CIV. 6486 (KPF), 2015 WL 7308659, at *9 (S.D.N.Y. Nov. 19, 2015) (citations omitted).
In Gorman, the court dismissed plaintiff’s constructive discharge claim, which was based in part on plaintiff’s placement on a Performance Improvement Plan (or “PIP”). The court explained:
[T]he PIP created a roadmap for Gorman to succeed in his position, with ongoing guidance and support from Gorman’s supervisors. As an at-will employee, Gorman had the freedom to choose resignation over completion of PIP, and he was within his rights to opt for alternative employment. Nothing about the PIP, however, indicates that resignation was Gorman’s only reasonable option; this is particularly so given his successful completion of an analogous Coaching Plan in the past.
The issue of constructive discharge arises in a variety of contexts, and therefore all of the facts and circumstances must be considered.
Generally speaking, and all things being equal, it is more difficult for a plaintiff to establish an employment discrimination or retaliation claim where the employer has subjected the employee to a discrete “adverse employment action” (e.g., termination or demotion) than to proceed on a claim of constructive discharge.