Threats of Termination & Constructive Discharge

In employment law, a “constructive discharge” occurs when an employer intentionally creates an intolerable work atmosphere that forces the plaintiff to quit involuntarily. See Andersen v. Rochester City Sch. Dist., 481 Fed.Appx. 628, 632 (2d Cir.2012); see also Walsh v. Scarsdale Union Free School District, 2019 WL 1316486 (S.D.N.Y. 2019) (“In addition to an objectively intolerable environment, to state a prima facie case of constructive discharge, Plaintiff must establish that the constructive discharge occurred in circumstances giving rise to an inference of discrimination on the basis of [his] membership in [a protected] class.”).

There are many circumstances that might give rise to constructive discharge. One, which I will discuss here, is where an employee is threatened with termination.

“In order to establish constructive discharge, it is not enough for a plaintiff to resign instead of facing potential disciplinary charges …, nor is it enough for a plaintiff to fear termination[.]” Dall v. St. Catherine of Siena Medical Center, 966 F.Supp.2d 167, 177 (E.D.N.Y. 2013). “However, threats of termination may be sufficient to show constructive discharge.” Id. at 178.

In determining whether threats of termination are sufficient to make out such a claim, courts look to several factors, including “whether the threats of termination were repeated, direct, or involved additional adverse conduct.” Id.

In the Dall case, for example, the court found that plaintiff presented sufficient evidence to create a material issue of fact as to whether he suffered an adverse employment action in the form of a constructive discharge, noting (inter alia) that plaintiff was informed “that he would be terminated if he did not resign and advised … to resign or risk ‘irreparable’ damage to his reputation.” Id. at 178-179. While defendant presented “contrary evidence indicating that it had not yet decided what disciplinary action would be imposed and that [defendant’s human resources representative] had not requested Plaintiff’s resignation or advised Plaintiff that he would be terminated if he did not resign”, it was “for a jury to decide whether to credit Plaintiff’s version or the Defendant’s version of the facts.” Id. at 179.

Other cases, however, go the other way, finding that alleged threats of termination are insufficient to establish constructive discharge. See, e.g., Stull v. North Shore-LIJ CareConnect Insurance Agency, Inc., 2018 WL 3350319 (EDNY 2018) (stating that “excessive questioning, micro-management, and threats of termination are insufficient to support a claim of constructive discharge”).

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