Sixth Circuit Rules that Employee’s Evidence Raises Potential Claim for Retaliation, But Not Constructive Discharge

An African-American customer service worker who was held back from promotion while other white coworkers with similar performance reviews were promoted had a potential claim for race discrimination and retaliation, according to a recent Sixth Circuit Court of Appeals ruling. The employee did not have a valid claim for constructive discharge, though. The decision is a reminder to Tennessee employees and employers of the higher level of intolerable conditions for a constructive discharge claim as compared to a retaliation claim.

The employee, Delphine Henry, worked as a level-I customer relations representative at Abbott Laboratories. Despite receiving performance grades of either “exceeding expectations” or “achieving expectations” (the highest two grades) in all but one category in 2009, Henry was not selected for consideration for a promotion to a level-II representative.

By the spring of 2010, Henry filed a complaint with the Ohio Civil Rights Commission, alleging race discrimination. After Henry filed the administrative complaint, her performance assessment results declined precipitously. Abbott eventually placed Henry on a “performance improvement plan,” an adverse action, and later issued a “letter of expectations,” which the employee interpreted as a precursor to her termination. Based upon this, Henry retired.

Henry sued, alleging that the employer engaged in race discrimination, retaliation for the administrative complaint, and constructive discharge. Abbott asked for summary judgment on all of the claims, and the trial court sided with the employer.

Henry appealed, and the Sixth Circuit reached a mixed result. The appeals court concluded that the employee did have a potential case in many regards. In a race discrimination claim like Henry’s, the law requires the employee to show that another employee, who was outside the protected minority class, was given better treatment. Henry identified a white coworker, Rachel Wallis, who was promoted ahead of her despite having similar performance scores. The trial court had ruled that Wallis and Henry were not sufficiently “similarly situated” because they had different supervisors. The appeals court threw out this decision, deciding that the trial court used a definition of “similarly situated” that was too restrictive. Simply because the women had different supervisors did not automatically mean they were not similarly situated.

The appeals court also reversed the ruling on retaliation. Henry’s low scores after she complained to the OCRC, along with the increased scrutiny that supervisors placed upon her work, the performance improvement plan, and the letter of expectations were, in this case, enough to allow a reasonable jury to decide that a reasonable worker would be discouraged “from making or supporting a charge of discrimination.”

In spite of all this, the appeals court decided that Henry did not have enough for a case of constructive discharge. Henry cited the same negative acts that she used in her retaliation claim. The court ruled that the alleged misconduct by Abbott, while potentially enough to deter a worker from filing a valid discrimination charge, was not enough to meet the standard for constructive discharge. Constructive discharge requires clearing a higher hurdle, namely, showing that the employer’s negative actions created “objectively intolerable conditions.” Specifically, the court discounted Henry’s belief that the letter of expectations was a precursor to termination, since her beliefs were strictly subjective. In the court’s words, an “employee who quits a job in apprehension that conditions may deteriorate later is not constructively discharged.”

Cases of employment discrimination and constructive discharge require a thorough knowledge of the many nuances of the law. For reliable advice and representation, contact the Tennessee race discrimination attorneys at Parks, Chesin & Walbert. Our attorneys have many years of experience helping clients like you assess and pursue a discrimination case.

To speak with one of our lawyers about your case, call 404-873-8048.

More blog posts:

New 6th Circuit Ruling and its Impact on Disparate Discipline Cases in Tennessee, Atlanta Employment Attorneys Blog, March 17, 2016

Tennessee Warehouse Workers’ Complaints to Supervisor about Harassment Enough to Support Title VII Case, Atlanta Employment Attorneys Blog, Oct. 14, 2015

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