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Anticipatory resignation is not constructive discharge; FMLA claims fail

By Joy P. Waltemath, J.D.

Affirming summary judgment for a school board, the Sixth Circuit agreed that a superintendent who resigned after the board first criticized her time away from work (some of it for FMLA-protected leave) and then audited the school district’s business office records to see if it was properly tracking time off could not show that she suffered a constructive discharge or other adverse employment action. As a result, her FMLA retaliation and interference claims failed (Groening v. Glen Lake Community Schools, March 12, 2018, Thapar, A.).

Time away from work. After taking six weeks of FMLA leave for a hip replacement, the superintendent’s elderly mother became ill, and the superintendent took intermittent FMLA leave for “the rest of the year.” At least one board member became critical of her time away from work, saying she was disappointed that the superintendent would not be present for another meeting and that the board had spent too much time working around her schedule. The board president even told one of his colleagues that the superintendent’s time away would be “subject to accountability on her annual evaluation.” In addition to FMLA leave, the superintendent had also been away on vacation and for business trips.

Retirement. When the board suggested it would not approve her upcoming business travel plans, she said she would retire at the end of the following school year and accused the board of retaliating against her. And when the board responded to that by voting to audit the district’s business office—among other things to determine if it was accurately tracking administrators’ time off—the superintendent resigned effective the day before the auditors sent their report to the board. She then sued for FMLA retaliation and interference.

Constructive discharge? Conceding that the board did not fire, demote, or discipline her for taking leave, the superintendent claimed she was constructively discharged. The doctrine does not protect employees who leave their job “in apprehension that conditions may deteriorate later.” To show that her working conditions were objectively intolerable, the superintendent argued that the board subjected her to months of hostility because it believed her leave was holding up the school district’s business. She recounted the board member and president’s comments, and she suggested the board-ordered audit was designed to find evidence of wrongdoing. Board members continued to complain about her, so much so that she said she had no choice but to resign.

Working conditions not intolerable. Even viewed in the light most favorable to the superintendent, these conditions were not intolerable, said the court. First, the superintendent did not learn of the board president’s comment or the complaints about her performance until after she resigned; she learned of them in private emails produced during discovery. Since the superintendent was unaware of them during her employment, they can hardly be said to have created intolerable working conditions. Nor could the board’s criticism of her amount to constructive discharge when it was limited to a few isolated incidents, as it was here. “The fact that the board’s criticism was directed at the superintendent’s use of FMLA leave does not somehow flip a switch, suddenly making her working conditions intolerable,” said the Sixth Circuit.

Audit not intolerable. Employers are permitted to investigate their employees for wrongdoing, including wrongdoing related to protected FMLA leave. And although there is an inherent tension resulting from an investigation by an employer of an employee, that tension does not rise to the level of intolerableness necessary to show constructive discharge. Because the superintendent could not show that she was constructively discharged, the appeals court affirmed summary judgment on her retaliation claim.

Interference. As for the superintendent’s FMLA interference claim, she first contended that the board interfered with her leave when it conducted an audit and planned to give her a negative performance evaluation—essentially repackaging her retaliation argument. And there is Sixth Circuit precedent, in 2007’s Wysong v. Dow Chemical Co., holding that an employee could recover for retaliatory discharge under the FMLA’s interference theory—not just under the retaliation theory. When an employer takes an employment action based on an employee’s FMLA leave, the employer effectively denies the employee a benefit to which she is entitled, explained the appeals court. In the superintendent’s view, just like the retaliatory discharge in Wysong, the board’s audit and planned performance evaluation were based on the fact that she took leave, and thus constituted the denial of a benefit.

“Retaliation-lite.” But that argument only goes so far, said the Sixth Circuit. Wysong did not alter the Circuit’s well-established rule that employees can only recover for an employer’s retaliatory actions under the FMLA if they show an adverse employment action. Wysong and all of the cases it relied upon involved retaliatory discharge; it “did not create a category of ‘retaliation-lite’ claims.” Regardless of what the superintendent called her claim, she had to identify an adverse employment action, and she failed to do so, because the board’s decision to conduct an audit was not an adverse employment action.

Not required to work following surgery. Nor could the superintendent show the board interfered with her FMLA rights by requiring her to work while she was recovering from surgery. The board hired an interim superintendent to fill in for her; it did not require her to attend any board meetings during her recovery. But she voluntarily attended a board meeting and occasionally contacted the board and interim superintendent about work-related matters. “She cannot now claim that the board interfered with her rights by responding to discussions she initiated,” reasoned the appeals court. As for the one instance where the board actually initiated contact with her (when it requested a breakdown of her time away from work), it was a de minimis request that did not rise to the level of actionable interference. Accordingly, the board was entitled to summary judgment on her interference claim as well.