August 2005

The Constructive-Discharge Claim in Washington and the Employer's Ability to Defend It
— The Impact of the U.S. Supreme Court's Decision in Pennsylvania State Police v. Suders

By Soojin E. Kim

Since it is often the case that a harassment plaintiff will resign and later claim that the harassment forced her to quit, employers and employees across the country have had a big stake in how the U.S. Supreme Court would answer the question of whether a constructive discharge brought about by supervisor sexual harassment constitutes a "tangible employment action" and, therefore, precludes the employer's ability to assert an affirmative defense. This article examines how the Court's 2004 decision in Pennsylvania State Police v. Suders affects Washington employees' ability to bring a constructive discharge claim and Washington employers' ability to defend it. As part of this examination, this article will discuss the requirements in Washington state law for proving constructive discharge and compare them with the standard set forth in Suders.

Introduction

Recently, the U.S. Supreme Court delivered a timely reminder to employees of the importance of escalating their complaints of sexual harassment to an appropriate official level. In Pennsylvania State Police v. Suders,1 the Supreme Court granted cert to resolve disagreement among the circuit courts over whether a constructive discharge brought about by supervisor harassment constitutes a "tangible employment action" and therefore precludes assertion of the defense articulated in Faragher v. City of Boca Raton.2

The Suders decision also serves as a reminder to employers of the importance of establishing an effective mechanism for reporting and resolving employee complaints. Following the path marked by its 1998 decisions, the Supreme Court in Suders noted that unless the employee's resignation was precipitated by an official act, an employer may defend against a constructive-discharge claim "by showing both (1) that it had installed a readily accessible and effective policy for reporting and resolving complaints of sexual harassment, and (2) that the plaintiff unreasonably failed to avail herself of that employer-provided preventive or remedial apparatus."3 The Court held that a constructive discharge is not in and of itself a tangible employment action.

The 2004 Suders decision went against the view of the 3rd, 7th, 8th, and 11th Circuits that a constructive discharge constitutes a tangible employment action.4 Although the 9th Circuit had not adopted a general rule as to whether a constructive discharge is in and of itself a "tangible employment action," two district courts sitting within the 9th Circuit had held that it was a tangible employment action that would bar the Faragher/Ellerth affirmative defense.5

Facts and procedural history of Suders

Nancy Drew Suders worked as a police communications operator for the McConnellsburg barracks of the Pennsylvania State Police (PSP) beginning in March 1998.6 While working at PSP, her three supervisors constantly sexually harassed her.7 Supervisor Easton "would bring up [the subject of] people having sex with animals" each time Suders entered his office.8 Easton also would sit down near Suders, wearing spandex shorts, and spread his legs apart.9 Supervisor Baker made obscene gestures in Suders's presence by grabbing his genitals and shouting out a vulgar comment inviting oral sex — as many as five to 10 times per night throughout Suders' employment at the barracks.10 Suders once told Baker she d[id]n't think [he] should be doing this; Baker responded by jumping on a chair and again performing the gesture, with the accompanying vulgarity.11 Further, Baker would "rub his rear end in front of her and remark 'I have a nice ass, don't I?'"12 In June 1998, Suders told PSP's Equal Employment Opportunity Officer, Virginia Smith-Eliott, that she "might need some help," but "neither woman followed up on the conversation."13 Suders again contacted Smith-Eliott two months later, and informed her that she was being harassed and was afraid.14 Smith-Eliott told Suders to file a complaint but did not indicate where she could acquire the forms to do so.15

Two days later, Suders's supervisors arrested her for theft of her own computer-skills exam papers.16 Contemporaneous with her arrest, Suders resigned from the force, then sued the PSP in September 2000, alleging, inter alia, that she had been subjected to sexual harassment and constructively discharged, in violation of Title VII of the Civil Rights Act of 1964.17

Although the district court found that Suders presented sufficient evidence to permit a trier of fact to conclude that the supervisors had created a hostile work environment, the district court held that PSP was not vicariously liable for the supervisors' conduct, and thus, granted PSP's motion for summary judgment. Relying on principles articulated in Faragher and Ellerth, the district court concluded that Suders did not avail herself of PSP's internal procedures for reporting harassment, as she resigned just two days after first reporting the harassment.18 The 3rd Circuit reversed, concluding that a constructive discharge should always be treated as a "tangible employment action," thereby rendering the Ellerth/Faragher defenses inapplicable.19

Why does it matter whether a constructive discharge can be classified as in and of itself a "tangible employment action"?

The effect of the 1998 Ellerth/Faragher decisions has been to encourage employers to establish effective internal procedures or mechanisms for reporting and resolving employee complaints of harassment. This would mean the employer disseminating some formal policy against harassment along with a reasonable complaint procedure, including a provision for bypassing the offending supervisor in instances where the supervisor himself is the alleged harasser.20 The other effect of the 1998 decisions has been to discourage employers from taking tangible employment actions against employees who complain about harassment. A tangible employment action is defined as "a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits."21

When a "supervisor's harassment culminates in a tangible employment action," the "employer is subject to vicarious liability" for the hostile environment created by a supervisor and will not have recourse to the affirmative defense.22

If the Supreme Court had held that constructive discharge is in and of itself a tangible employment action, the harassed employee could resign without having to mitigate her damages by using the employer's internal grievance procedures or other mechanisms put in place by the employer to report and resolve complaints. Such a holding may have created an unintended incentive for harassed employees to quit and claim constructive discharge instead of staying in the workplace to fight the discrimination.

What constitutes an "official act" by an employer?

In 2004, the Supreme Court concluded that in the absence of an employer's official act, the employer may rely on the affirmative defense that the employee failed to take advantage of the employer-provided mechanisms for reporting and resolving complaints of harassment in the workplace.

In Suders, the Supreme Court relied on its decisions in Ellerth and Faragher to define "official act." Examples of official acts are actions "reflected in company records—a demotion or a reduction in compensation."23 Such acts show "beyond question" that the supervisor has used his managerial or controlling position to the employee's disadvantage.24 Absent such acts, the Court found that the extent to which the supervisor's misconduct has been aided by the agency relationship with the employer is less certain.25 In the face of such uncertainty, the Court followed precedent in holding that a constructive discharge in and of itself is not an "official act" and not a "tangible employment action" that bars the affirmative defense. In other words, the fact of the resignation is not itself equivalent to an employer's action in firing the employee, or demoting or reassigning her to a position with less pay or benefits.
 
The Supreme Court's concern with protecting employers who have established effective mechanisms for reporting and resolving employee complaints of harassment

The Court was concerned with holding strictly liable, under Title VII of the Civil Rights Act of 1964, only those employers whose supervisors engaged in sexual harassment via an official act. The Court said that when an official act does not underlie the constructive discharge, the "employer ordinarily would have no particular reason to suspect that a resignation is not the typical kind daily occurring in the work force."26 In other words, the Court will not presume that the employer had notice of the co-worker or supervisor misconduct unless the harassed employee escalated her complaint to an appropriate official level before she resigned.
 
Impact of Suders on law regarding constructive discharge

The foregoing discussion of the Suders decision, however, should not discourage the victimized employee from bringing a constructive discharge claim. Following is a discussion of how Suders has clarified federal law on "constructive discharge" and what it means for employees and employers in Washington.

Suders clarifies federal law on "constructive discharge"

To establish "constructive discharge," a plaintiff must make a further showing than what she is required to show to establish a hostile work environment.27 To establish a hostile work environment, plaintiffs must show harassing behavior "sufficiently severe or pervasive to alter the conditions of [their] employment."28 But a hostile-environment constructive-discharge claim entails something more: "A plaintiff who advances such a compound claim must show working conditions so intolerable that a reasonable person would have felt compelled to resign."29

In Suders, the Court found constructive discharge and noted that the facts showed "harassment ratcheted up to the breaking point."30 The Court clarified that "harassment so intolerable as to cause a resignation may be effected through co-worker conduct, unofficial supervisory conduct, or official company acts."31 In other words, showing an official act of the company is not necessary to prove constructive discharge.32

Washington state law on "constructive discharge"

In Washington, however, the plaintiff employee's analysis does not stop with Suders. At least one Washington State Supreme Court case holds that "Washington law does not recognize a cause of action for constructive discharge; rather the law recognizes an action for wrongful discharge which may be either express or constructive."33 In analyzing the plaintiff's constructive-discharge claim as a type of wrongful discharge, the Court applied the test articulated in Thompson v. St. Regis Paper Co. In Snyder v. Medical Service Corp. of Eastern Washington, the Court said: "We recognize an exception to the terminable-at-will doctrine by permitting a cause of action for wrongful discharge only where the discharge contravenes a 'clear mandate of public policy.'"34

However, Washington courts, both before and after the 2001 Snyder decision, have recognized a constructive discharge as a cause of action. The courts have analyzed Washington cases involving claims of discriminatory treatment and harassment pursuant to the Washington Law Against Discrimination (WLAD), RCW 49.60, several of which are discussed below, using the objective employee standard relied upon by the federal courts and recently affirmed in Suders. Washington has also allowed constructive discharge as a cause of action where it arose pursuant to the Family Leave Act, RCW 49.78.070. The U.S. Supreme Court's decision in Suders generally strengthens the ability of plaintiffs to plead a constructive-discharge claim as an independent cause of action, and is likely to bolster reliance on the objective employee standard as well as the "aggravated circumstances" and "deliberate act" tests that have been used in Washington.

"Aggravating circumstances" or "continuous pattern" test

In Sneed v. Barna,35 the Washington Court of Appeals adopted the "aggravating circumstances" or "continuous pattern" standard set forth in the 9th Circuit's decision in Sanchez v. City of Santa Ana.36 The Sneed court found as a matter of law that the plaintiff's allegations failed to show aggravating circumstances" or a "continuous pattern of discriminatory treatment" required to support a constructive-discharge claim.37 In Sneed, the plaintiff was removed from the position of school principal to position as "administrator for at-risk students" at the same pay.38 She also worked in the new position for a relatively short time, roughly two months, before quitting.39

In Washington v. Boeing, the plaintiff claimed she was constructively discharged due to her sex and race in violation of RCW 49.60.40 She complained that co-workers and a manager of a flight-line crew at Boeing addressed her as "dear" and "sweet pea"; that a male co-worker refused to assist her; that a calendar display was offensive; and that a co-worker called her "brillo head."41 The Court of Appeals found that these facts were insufficient to constitute the "aggravating circumstances" or "continuous pattern of discriminatory treatment" required to support plaintiff's claim of constructive discharge.42 The Court noted that her co-workers' refusal to help plaintiff did not affect her work performance and that, plaintiff was upgraded from a grade 4 to a grade 7 three months after she was transferred to the flight line.43 The Court also noted Boeing's responsiveness to complaints: When plaintiff's manager was made aware that she did not want to be addressed as "dear," he apologized and never called her that again.44 Boeing also counseled employees regarding the use of inappropriate terms to address co-workers, had the offensive calendar taken down, and counseled a co-worker about assisting plaintiff.45

The "aggravating circumstances" test is consistent with long-standing federal caselaw cited by the U.S. Supreme Court in Suders that say a hostile-environment constructive-discharge claim entails something more than a hostile work environment claim.

"Deliberate act" requirement and the objective employee standard

Washington courts have adopted the objective employee standard of the federal circuit courts of appeal and continue to also require deliberate action on the part of the employer in bringing about the intolerable condition. "[C]onstructive discharge occurs where an employer deliberately makes an employee's working conditions [so] intolerable that a reasonable person would be compelled to leave."46

In Blomster v. Nordstrom, the Court of Appeals held that the trial court erred in dismissing plaintiff's constructive-discharge claim pursuant to the Family Leave Act, RCW 49.78, that the employer failed to honor its own policy, consistent with the FLA, and that an employee will be returned to the same or equivalent position after taking family leave.47 The Court found that plaintiff had presented sufficient evidence to go to the jury on whether Nordstrom deliberately made working conditions so intolerable that a reasonable person in plaintiff's position would be forced to quit.48 In that case, when plaintiff returned from family leave, her salary was cut in half; she was relieved of all management responsibilities; she lost her management perks; she lost her corporate travel expense account; she was being supervised by people she had trained and supervised before she left on leave; and she was given menial tasks considerably different from the duties she possessed before she left.49

The "deliberate act" requirement, as defined by Washington state courts, is not inconsistent with Suders. Under Washington state common law, the word "deliberately" merely requires "a deliberate act of the employer creating an intolerable condition, without regard to the employer's mental state as to the resulting consequence."50 Washington courts have clarified that the "deliberate act" requirement refers to the supervisor's intention to engage in discriminatory treatment or harassing behavior rather than an employer's intention to force the employee to quit. For example, in Colville v. Cobar Services, Inc., plaintiff happened upon her supervisor masturbating in a small locked room of the federal courthouse where she worked in janitorial services.51 The Colville court found there was no reasonable inference that the supervisor deliberately acted to create a condition under which the plaintiff would discover him masturbating.52

In Suders, the U.S. Supreme Court clarified that a constructive discharge-claim does not require a showing by the employee that supervisors took official action to negatively change the employee's employment status. This clarification resolves the split in the circuits regarding whether an employee claiming constructive discharge must prove that the employer deliberately intended to induce her resignation. The Suders decision affirms the 3rd, 5th, 7th, 9th, and 10th Circuits that have held that no such intent is required.53 In doing so, the Suders decision gives further direction to courts, federal and state, in Washington.

"Contravenes public policy" test

Washington courts have sometimes analyzed a constructive discharge as a type of wrongful discharge.54 In a 1993 decision, the Court of Appeals stated that one of the requirements for proving constructive discharge was to show that the employer made working conditions intolerable for plaintiff because she was a woman.55

In a 2004 decision, the Court of Appeals not only analyzed the constructive-discharge claim under the objective employee and aggravating circumstances standard, but also analyzed the claim to determine whether the plaintiff "met all of the elements of the tort of wrongful discharge in violation of public policy."56 To establish liability for wrongful discharge, a plaintiff must prove (1) the existence of a clear public policy; 2) that discouraging the employee's conduct would jeopardize the public policy; and 3) that this conduct caused the discharge.57

In Korslund v. Dyncorp Tri-Cities Services, Inc., plaintiff Korslund was removed as lead engineer after reporting various safety concerns about radioactive materials.58 After his reports provoked an investigation of the employer's alleged abuses, the plaintiff himself became the target of the investigation and was threatened with termination.59 A psychologist eventually put plaintiff on disability for job-related stress, from which he did not return to work.60 The Court of Appeals found that Korslund presented sufficient facts that would permit a jury to find that the employer's retaliation for reporting safety concerns caused plaintiff's constructive discharge.61

The analysis in the Korslund decision tends to show that, despite the Snyder decision, Washington courts still use the objective-employee standard and do recognize the constructive-discharge claim as an independent cause of action. The "contravenes public policy" requirement for proving constructive discharge has little practical effect. Why? Discriminatory treatment or harassing conduct contravenes public policy. (See RCW 49.60.) If an underlying discrimination claim fails, the constructive-discharge claim necessarily fails.

Conclusion

The Suders decision gives employers the security of knowing that, as long as they have an effective mechanism for reporting and resolving complaints of harassment, they will be able to raise as a defense a plaintiff's unreasonable failure to take advantage of it. At the same time, Suders leaves intact the ability of Washington employees to bring constructive-discharge claims as an independent cause of action. It remains to be seen whether Washington courts will apply Suders broadly to cases involving other types of discrimination besides sexual harassment.

Soojin Kim is an employment lawyer, formerly with Graham & Dunn, PC., in Seattle. She is an alumna of Williams College and the University of Washington School of Law. She has litigated employment discrimination and breach-of-employment-contract cases in state and federal courts, but finds equally fulfilling the counselor's role in helping to prevent or minimize workplace traumas. She can be reached at soojinekim@gmail.com. 
 
NOTES
1  542 U.S. 129, 124 S. Ct. 2342 (2004).
2  524 U.S. 775 (1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998).
3  124 S. Ct. at 2347.
4  See Durham Life Ins. Co. v. Evans, 166 F.3d 139, 148 (3rd Cir. 1999); EEOC v. University of Chicago Hospitals, 276 F.3d 326, 331 (7th Cir. 2002); Jaros v. Lodgenet Entertainment Corp., 294 F.3d 960, 966 (8th Cir. 2002); and Poole v. The Country Club of Columbus, Inc., 129 F.3d 551, 554 (11th Cir. 1997).
5  See Haworth v. Romani Imported Motors, Inc., 2001 U.S. Dist. LEXIS 21508, at *8 (D. Or. Dec. 27, 2001). See also Vasquez v. Atrium Door & Window Co., 218 F. Supp. 2nd 1139, 1142-43 (D. Ariz. 2002) (noting that the Supreme Court's list of tangible employment actions in Ellerth [citing 524 U.S. at 765] was likely not intended to be either exhaustive or exclusive of a constructive discharge).
6  124 S. Ct. at 2342.
7  Id. at 2347.
8  Id.
9  Id.
10  Id.
11  Id. at 2348.
12  Id.
13  Id. at 208.
14  Id.
15  Id.
16  Id. at 2348.
17  Id.
18  Id. at 2349.
19  Id.
20  Faragher, 524 U.S. at 807-08.
21  Ellerth, 524 U.S. at 761.
22 Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at 807.
23  124 S. Ct. at 2355.
24  Id. citing Ellerth, 524 U.S. at 760.
25  Id.
26  124 S.Ct. at 2355.
27  Suders, 124 S. Ct. at 2347.
28  Id. (citations omitted).
29  Id. at 2354 (citations omitted).
30  Id. at 2355.
31  Id.
32  Id.
33  Snyder v. Medical Service Corp. of Eastern Washington, 145 Wash. 2d 233, 238 (2001).
34  Id. at 238-39 quoting Thompson, 102 Wash.2d 219, 232 (1984).
35  Sneed, 80 Wash. App. 843, 850 (1996)
36  915 F.2d 424, 431 (1990) cert denied 502 U.S. 815, 112 S. Ct. 66 (1991).
37  Sneed, at 850.
38  Id.
39  Id.
40  105 Wash. App. 1, 16 (2001).
41  Id. at 11 and 13.
42  Id. at 16.
43  Id. at 11.
44  Id. at 12.
45  Id.
46  Korslund v. Dyncorp Tri-Cities Services, Inc., 121 Wash. App. 295, 318 (2004) citing Bulaich v. AT & T Info. Sys., 113 Wash. 2d 254, 258-59 (1989) and Martini v. Boeing Co., 137 Wash.2d 357, 366 n.3 (1999).
47  103 Wash. App. 252, 254 (2000).
48  Id. at 258.
49  Id. at 258-59.
50  Bulaich, 113 Wash.2d at 261.
51  73 Wash. App. 433, 435-36 (1994).
52  Id. at 441.
53  See Satterwhite v. Smith, 744 F.2d 1380 (9th Cir. 1984).
54  See, supra, the Washington Supreme Court's 2001 holding in Snyder, 145 Wash. 2d at 238. See also Reninger v. State Department of Corrections, 134 Wash. 2d 437, 446 (1998) (holding plaintiffs failed to state a claim for wrongful constructive discharge because they did not allege or prove they were discharged "for a reason that contravenes public policy").
55  Hill v. GTE Directories Sales Corp., 71 Wash. App. 132, 143 (1993).
56  Korslund v. Dyncorp Tri-Cities, 121 Wash. App. at 317-18.
57  Id. at 318 citing Hubbard v. Spokane County, 146 Wash.2d 699, 707 (2002).
58  Id. at 318.
59  Id.
60  Id. at 309.
61  Id. at 321-22.