According to the Court’s opinion, the plaintiff was a
commissioned salesperson. Following his
resignation, he was convinced to return to work by the promise of a
$70,000/year forgivable draw, a four-day work week, a $40/day per diem and
pre-paid travel expenses. However, the employer later denied that the
draw was to be forgivable and the four-day work week never materialized. The plaintiff claimed to only be permitted a
few hours of sleep each night because of his travel schedule. The plaintiff then submitted a doctor’s note
in March noting, among other things, mental fatigue and recommended time off from
traveling and sleep hygiene. The employer did not address his repeated requests
for more sleep time and need for a four-day work week or the physician’s
note. On September 1, his therapist
faxed the employer a note about his acute anxiety and depression, that he would
be off work until September 5 and that he would require additional time off in
the future under the FMLA. On September
4, the plaintiff submitted an FMLA request for time off when his anxiety or
depression flared up. The employer
responded the next day by terminating his draw retroactive to September 1, reinstated
his commissioned pay plan, terminated his pre-paid travel expenses and
requested that he repay the $22,752 already advanced to him through his draw. The plaintiff indicated that he could not
work under the new conditions and requested that his former compensation
arrangements be reinstated. In the
meantime, the employer processed his FMLA request and sent a medical
certification form to his medical provider.
On September 18, the plaintiff’s
attorney notified the employer that he would not be returning to work and the proceedings
were commenced.
The trial
court had dismissed the plaintiff’s ADA discrimination allegation on the
grounds that a constructive discharge could not constitute an adverse
employment action (which is necessary to establish a prima facie case). The
Court noted that this was not a proper analysis of the law. “Thus, although already well established,
we hold once more today that a plaintiff may use a constructive discharge claim
to show that he or she has suffered an adverse employment action.”
In addition, the Court found that the plaintiff had produced
sufficient evidence to show that he had been constructively discharged.
To demonstrate a constructive discharge, the plaintiff must
show that (1) the employer deliberately created intolerable working conditions,
as perceived by a reasonable person; (2) the employer did so with the intention
of forcing the employee to quit; and (3) the employee actually quit. . . .
. . .“[w]hether a
reasonable person would have [felt] compelled to resign depends on the facts of
each case[,]” but we consider several factors, including but not limited to,
“reduction in salary” and “badgering, harassment, or humiliation by the
employer calculated to encourage the employee’s resignation.” . . .
. . . Further, in analyzing the second prong,
we have held that “a complete failure to accommodate, in the face of repeated
requests, might suffice as evidence to show the deliberateness necessary for constructive
discharge.”
The Court found that a reasonable person would have found
continued employment intolerable and felt compelled to resign by having his
draw and pre-paid expenses terminated retroactively to his first date of
medical leave and being put back on a commissioned pay plan. It was not difficult
to find that the employer was attempting to force his resignation because he
had already resigned before over the commissioned pay plan and only returned
when promised a draw and the employer had refused to acknowledge or discuss his
repeated requests for more sleep.
Accordingly, the Court found that the plaintiff’s disability
discrimination claim should gone to a jury.
The Court also found that the plaintiff had stated
actionable claims for retaliation. His repeated
requests for a reasonable accommodation (i.e., more sleep) and for FMLA leave
constituted protected activity. The Court rejected the employer’s contention
that it had never been put on notice that he had a disability. “But, the pertinent inquiry here is not whether
Hurtt proved he had a disability under the ADA, or whether ISI had specific
knowledge of Hurtt’s alleged disability, but rather, whether Hurtt showed a
good-faith request for reasonable accommodations.”
As a whole, these acts are sufficient, good-faith requests
for accommodations. [The employee's] verbal requests initially notified [the employer] that he
sought sleep accommodations during his travels. And while Dr. Littles’ document
did not explicitly request an accommodation, it specifically corroborated
[his] verbal requests that he be given sufficient time to sleep during his
travels to accommodate his medical conditions. Furthermore, Dr. Sharnowski’s
letter and [his] FMLA leave request notified [the employer] that he sought
accommodation in the form of time off from work. Accordingly, we conclude that
[the plaintiff] has put forth sufficient evidence to show that he engaged in protected
activity as required under a claim for retaliation under the ADA.
His constructive
discharge was sufficient evidence of an adverse employment action to support
his retaliation claim. “To be adverse, a retaliatory action
must be enough to dissuade a reasonable person from engaging in the protected
activity. . . .”
Although the employer never denied the plaintiff’s FMLA
request or demanded that he return to work, its constructive discharge of him could be construed as discouraging an
employee from taking FMLA leave and, thus, constitute an actionable FMLA interference
claim.
Contrary to [the employer's] assertions, the fact that [it] did not
literally interfere with [his] FMLA leave (i.e., by denying it, requesting he
report to work, or complete work-related tasks) does not impede [the plaintiff's] claim
of FMLA interference. By engaging in an act that would discourage [him] from
using his FMLA leave, [the employer] could be liable under a claim for FMLA interference.
NOTICE: This
summary is designed merely to inform and alert you of recent legal
developments. It does not constitute legal advice and does not apply to any
particular situation because different facts could lead to different results.
Information here can be changed or amended without notice. Readers should
not act upon this information without legal advice. If you have any questions
about anything you have read, you should consult with or retain an employment
attorney.
