The High Bar For Constructive Termination

Occasionally, employees who resign their jobs will claim that they were “constructively terminated.” The standard for a constructive termination claim is a high one. In the words of the Court considering the constructive termination claim of Starke County, Indiana deputy sheriff Donald Ferguson, “to prevail on a claim of constructive discharge, a plaintiff must demonstrate a work environment that is even more egregious than that needed for a hostile work environment such that he was forced to resign because his working conditions, from the standpoint of the reasonable employee, had become unbearable. Courts have focused on threats of physical harm, or on emotional harassment that is truly beyond the pale.”

The Court found that Ferguson could not meet that high burden of proof. The Court found that the most Ferguson could prove was that after the Sheriff began to suspect Ferguson had supported the Sheriff’s opponent in a recent election, the Sheriff would no longer socialize with Ferguson. The Sheriff then issued patrol rifles to all of the deputy sheriffs except for Ferguson. The Sheriff refused to allow Ferguson to attend additional law enforcement training, promoted a less senior deputy sheriff to a detective’s position over Ferguson, docked Ferguson’s pay for his teaching of a firearms class without the Sheriff’s authorization, and moved Ferguson from day shift to night shift.

The Court concluded that “the facts show that Ferguson’s workplace was unpleasant, not unbearable. The harassment and petty slights to which Ferguson was subjected are inconsistent with basic principles of civility and professionalism, but they do not rise to the level of egregiousness that would allow a reasonable jury to find that Ferguson’s working conditions were intolerable.”

The Court did allow to proceed to trial Ferguson’s claim that his free speech rights were violated by the Sheriff’s conduct. As the Court put it, “the Title VII employment discrimination standard is inapplicable to Ferguson’s First Amendment retaliation claim. A First Amendment retaliation claim does not require an adverse employment action within the meaning of the antidiscrimination statutes, such as Title VII of the Civil Rights Act of 1964. Rather, any deprivation that is likely to deter the exercise of free speech is actionable.

“In Ferguson’s version of events, supported by admissible evidence, the Sheriff’s actions disrupted the performance of Ferguson’s duties. From denying Ferguson equipment and training to refusing to communicate with Ferguson, the Sheriff made it more difficult for Ferguson to perform his job responsibilities in an efficient and effective manner. The Court finds that Ferguson has presented sufficient evidence to raise a genuine issue of material fact as to the second element of a First Amendment retaliation claim.”

Ferguson v. Cowen, 2013 WL 5348479 (N.D. Ind. 2013).