Modern building.Modern office building with facade of glass
Representing Businesses and Business Owners Contact Us Now!
Published on:


Former employees who quit their jobs will sometimes sue their former employers for retaliation based on the theory that they were “constructively” terminated.  Under federal employment law, a “constructive” termination occurs when an employee’s resignation is caused by involuntary working conditions, duress, or an employer’s misrepresentation.  However, the threshold of conduct which qualifies as a constructive termination or discharge is high.  Because the threshold is high, employers can often show that the discharge was not “constructive” and thereby defeat claims of retaliation. Peter Mavrick is a Fort Lauderdale employment attorney, who defends businesses and their owners against employment law claims. Such claims include alleged employment discrimination and retaliation as well as claims for overtime wages and other related claims.

“A plaintiff asserting a retaliation claim under Title VII must show that: (1) he engaged in statutorily protected activity; (2) he suffered a materially adverse action; and (3) there was a causal connection between the protected activity and the adverse action.”  Howard v. Walgreen Co., 605 F.3d 1239 (11th Cir. 2010). has published several articles exploring how employers can prevail on the element of “protected activity.”  Employers may also challenge the element as to whether an “adverse action” occurred.

In the retaliation context, an action is materially adverse when it is “harmful to the point that [it] could well dissuade a reasonable worker from making or supporting a charge of discrimination.” See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006).  An employee that is fired has incurred an adverse action under retaliation law.  Normally, an employee who resigns cannot show that they have experienced an adverse action, however, an employee can claim that his or her resignation was forced by the employer.  “[W]hen an employee involuntarily resigns in order to escape intolerable and illegal employment requirements to which he or she is subjected because of race, color, religion, sex, or national origin, the employer has committed a constructive discharge.” Morgan v. Ford, 6 F.3d 750 (11th Cir. 1993).

Only extraordinary conduct can cause a resignation to qualify as a constructive discharge.  “This circuit has required pervasive conduct by employers before finding that a hostile work environment existed or a constructive discharge occurred.” Hipp v. Liberty Nat’l Life Ins. Co., 252 F.3d 1208 (11th Cir. 2001).  An employee-plaintiff “must demonstrate that [her] working conditions were so intolerable that a reasonable person in [her] position would be compelled to resign.”  Morgan v. Ford, 6 F.3d 750 (11th Cir. 1993).

When performing the analysis as to whether a constructive discharge occurred based upon an employer’s coercion, courts will apply a totality of the circumstances.  Particularly, as explained by the United States Court of Appeals for the Eleventh Circuit in Hargray v. City of Hallandale, 57 F.3d 1560 (11th Cir. 1995), Florida federal courts will consider the following elements: (1) whether the employee was given some alternative to resignation; (2) whether the employee understood the nature of the choice he was given; (3) whether the employee was given a reasonable time in which to choose; (4) whether the employee was permitted to select the effective date of the resignation; and (5) whether the employee had the advice of counsel. This is an objective test, meaning that an employee’s mental state or beliefs are irrelevant.

Even when an employer gives an ultimatum which threatens dire consequences upon a failure to resign does not necessarily mean that the resignation was really a constructive discharge.  “‘[T]he mere fact that the choice is between comparably unpleasant alternatives … does not of itself establish that a resignation was induced by duress or coercion, hence was involuntary.’”  Hargray v. City of Hallandale, 57 F.3d 1560 (11th Cir. 1995).  “The one exception to this rule is where the employer actually lacked good cause to believe that grounds for the termination and the criminal charges existed.”  Hargray v. City of Hallandale, 57 F.3d 1560 (11th Cir. 1995).

In the recent case, Johnson v. Florida Dep’t of Corr., 19-13512, 2020 WL 5757497 (11th Cir. Sept. 28, 2020), the Eleventh Circuit Court of Appeals described which conduct qualifies as a constructive discharge.  There, the employee-plaintiff claimed that she was constructively discharge based upon her employer’s hostile work environment and upon the threat of criminal prosecution.  Particularly, the Johnson plaintiff reportedly was called crazy by various employees and was generally treated negatively by her employer.  Furthermore, she claims she was threatened with arrest based upon an incident where she allegedly pointed a rifle.

Johnson found that this was not a constructive discharge.  Particularly, Johnson found the employer only had a police officer read the plaintiff her Miranda rights.  This did not qualify as a threat, and therefore, no additional analysis about the coerciveness of it was necessary.  Furthermore, Johnson found that the environment that the plaintiff was in was not hostile, let alone hostile enough to qualify as a constructive discharge.  Johnson referred to a few cases where even more egregious conduct did not qualify as a hostile work environment.  See e.g. Mendoza v. Borden, Inc., 195 F.3d 1238 (11th Cir. 1999) (holding no sex-based hostile work environment where male supervisor (1) told female employee he was “getting fired up”; (2) rubbed his hip against employee’s hip while smiling and touching her shoulder; (3) twice made a sniffing sound while looking at employee’s groin area and one instance of sniffing without looking at her groin; and (4) constantly followed employee and stared at her in a very obvious manner).

Employees claiming retaliation must show that they actually suffered an adverse action.  Employers can prevail in these cases by showing that the employee voluntarily resigned.  Peter Mavrick is a Fort Lauderdale employment lawyer.  This article does not serve as a substitute for legal advice tailored to a particular situation.

Contact Information