Title Clowes v. Alleghany Valley Hosptial
Date 1993
By Alito
Subject Misc
Contents
Page 1
LEXSEE 991 F2D 1159
JANET G. CLOWES, Appellee v. ALLEGHENY VALLEY HOSPITAL, Appellant
No. 92-3271
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
991 F.2d 1159; 1993 U.S. App. LEXIS 9100; 61 Fair Empl. Prac. Cas. (BNA) 908; 62 Empl. Prac. Dec. (CCH) P42,385
December 3, 1992, Argued
April 23, 1993, Filed
SUBSEQUENT HISTORY: As Amended May 27,
1993.
PRIOR HISTORY: **1 ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA. (D.C. Civil No. 89-01855).
CASE SUMMARY:
PROCEDURAL POSTURE: Appellant hospital chal- lenged a judgment of the United States District Court for the Western District of Pennsylvania, which held in favor of appellee employee under the Age Discrimination In Employment Act, 29 U.S.C.S. § 621 et seq., based on the constructive discharge of appellee.
OVERVIEW: Appellee employee was employed by ap- pellant employer as a nurse. Appellee claimed that a su- pervisor singled her out for especially close and harsh supervision, spoke to her in a demeaning and conde- scending manner, and as a result of the treatment ap- pellee began to suffer depression and related symptoms. On appeal, the court reversed the district court's judg- ment in favor of appellee, which found that appellee was constructively discharged and that age had been a deter- mining factor. The court held that appellee's judgment under the Age Discrimination In Employment Act, 29
U.S.C.S. § 621 et seq. was not justified, because she did not objectively prove that the conduct complained of was so unpleasant that a reasonable person would resign. The court ruled that because appellee was never threatened with discharge, was never demoted or urged to retire, and was not given unsatisfactory job evaluations, she did not demonstrate that she was constructively discharged. The court held that although she was unfairly criticized and treated unfairly, appellee's subjective perceptions were not sufficient in establishing a successful claim based on constructive discharge.
OUTCOME: The court reversed the judgment in favor of appellee employee because appellant's unfair and unwar- ranted treatment of appellee was insufficient in demon- strating that a reasonable person would be forced to re- sign, and thus, appellant could not maintain a claim for a constructive discharge.
LexisNexis(R) Headnotes
Labor & Employment Law > Discrimination > Age
Discrimination > Coverage & Definitions
HN1 The Age Discrimination In Employment Act, 29
U.S.C.S. § 621 et seq., prohibits, among other things, the "discharge" of a covered individual "because of such individual's age." 29 U.S.C.S. § 623(1).
Labor & Employment Law > Discrimination > Age
Discrimination > Coverage & Definitions
HN2 Whether a reasonable employee would resign when confronted with a particular set of circumstances is not, however, a pure question of historical fact, and the appropriate standard of review for such questions of reasonableness is subject to dispute.
Labor & Employment Law > Discrimination > Age
Discrimination > Coverage & Definitions
HN3 An employee may be able to show working con- ditions were so intolerable that a reasonable employee would feel forced to resign without remaining on the job for the period necessary to take those steps.
Labor & Employment Law > Discrimination > Age
Discrimination > Coverage & Definitions
HN4 Some courts have held that an employee must generally pursue litigation before quitting and claiming constructive discharge.
Labor & Employment Law > Discrimination > Age
Discrimination > Coverage & Definitions
HN5 The law does not permit an employee's subjective perceptions to govern a claim of constructive discharge.
991 F.2d 1159, *; 1993 U.S. App. LEXIS 9100, **1;
61 Fair Empl. Prac. Cas. (BNA) 908; 62 Empl. Prac. Dec. (CCH) P42,385
Page 2
COUNSEL: ,HELEN R. KOTLER, ESQ. (Argued), 475
Union Trust Building, 501 Grant Street, Pittsburgh, PA 15219, Jere Krakoff, Esq. Post Office Box 38034, Pittsburgh, PA 15238, Attorneys for Appellee.
JOHN E. LYNCHESKI, ESQ. (Argued) Robert S. Grigsby, Esq. Jeffrey P. Bauman, Esq. Cohen & Grigsby, P.C. 2900 CNG Tower, 625 Liberty Avenue, Pittsburgh, PA 15222, Attorneys for Appellant.
JUDGES: Before: SCIRICA, ALITO, and LEWIS, Circuit Judges .
OPINIONBY: ALITO
OPINION: *1159 OPINION OF THE COURT
ALITO, Circuit Judge:
Allegheny Valley Hospital appeals from a judgment awarded under the Age Discrimination In Employment Act, 29 U.S.C. § 621 et seq., based on the constructive discharge of a former employee. We hold that the evidence at trial was insufficient to prove a constructive discharge, and we therefore reverse the judgment of the district court.
*1160 I.
Janet Clowes was employed as a nurse in full-or part- time positions by Allegheny Valley Hospital for nearly
30 years. In March 1987, Clowes, then 53 years old, re- quested and was granted a transfer to the IV (intravenous)
**2 Team. Members of the IV Team were required to insert and change IV's, to make sure that IV's were flowing properly, and to document the procedures performed.
After Clowes's transfer, her supervisor was Diana Bennett Malloy, the IV Team's 34-year--old head nurse. Friction between Malloy and Clowes soon developed. Clowes claimed that Malloy singled her out for espe- cially close and harsh supervision. In particular, Clowes asserted that Malloy unfairly criticized her for ineptitude in starting IVs. According to Malloy, Clowes too often had to make more than a single needle injection or "stick" in order to start an IV, but Clowes claimed that she was
"not doing any more sticks than anyone else" on the staff. Clowes also alleged that Malloy followed her around the hospital and recorded the number of "sticks" she made with each patient but that Malloy made no effort to keep track of the number of "sticks" made by other nurses. Indeed, Clowes asserted that Malloy remained in the hos- pital after Clowes's day shift ended in order to "check every one of Clowes's patients to see if she could find anything that Clowes did wrong." Clowes said that Malloy would write down everything that Clowes **3
did or said. In addition, Clowes claimed that Malloy spoke to her in a "demeaning, condescending manner" different from that employed with the rest of the staff and that Malloy criticized her sharply in the presence of other nurses. Clowes also pointed to the fact that Malloy's written evaluations often assessed her as "fair" although she had never before received an evaluation of less than
"good." Clowes claimed that as a result of this treatment she began to suffer from depression and related symptoms and required psychiatric and other medical treatment.
The hospital painted a different picture of the reasons for the conflict between Malloy and Clowes. The hospi- tal claimed that Clowes's performance on the job declined and that Malloy was concerned about maintaining the pro- fessional standards of the IV Team. The hospital asserted that Clowes repeatedly failed to complete the required documentation on her patients, that she was disorganized and had difficulty setting priorities, and that other nurses complained that she made too many "stick" attempts and did not attend to irritated catheter sites.
On November 5, 1987, Malloy and a Nursing Department supervisor held a conference with **4 Clowes and discussed her alleged deficiencies. Clowes was instructed to submit a list of written goals, and she was also informed that her performance would be reviewed pe- riodically and that any problems would be discussed. In addition, Malloy told her that disciplinary action would be taken if she did not improve. Shortly thereafter, Clowes submitted written goals, as well as a response to Malloy's criticisms. Clowes's last day of work at the hospital was November 12. Beginning on November 13, Clowes took vacation and sick leave, and was later placed at her own request on temporary part-time status due to medical rea- sons. At the end of November, Clowes began working at a nursing home. In March 1988, she submitted a grievance to the hospital, but it was rejected as untimely.
In August 1989, Clowes commenced this action in the United States District Court for the Western District of Pennsylvania. Count 1 of her complaint alleged that the Allegheny Valley Hospital had violated the ADEA by
"forcing her to an involuntary retirement" based on her age. The other two counts asserted pendent state claims that are not involved in this appeal.
Clowes's case went to trial before a jury, and **5 the jury returned a verdict in her favor. In response to spe- cial interrogatories, the jury found that Clowes had been constructively discharged and that age had been a deter- minative factor. The district court subsequently entered judgment for Clowes and denied the hospital's motion for
*1161 judgment notwithstanding the verdict or for a new trial. This appeal followed.
991 F.2d 1159, *1161; 1993 U.S. App. LEXIS 9100, **5;
61 Fair Empl. Prac. Cas. (BNA) 908; 62 Empl. Prac. Dec. (CCH) P42,385
Page 3
II.
HN1 The ADEA prohibits, among other things, the
"discharge" of a covered individual "because of such in- dividual's age." 29 U.S.C. § 623(1). In this case, Clowes's ADEA claim and the judgment she won were predi- cated on the assertion that she had been constructively discharged. "We employ an objective test in determin- ing whether an employee was constructively discharged from employment: whether 'the conduct complained of would have the foreseeable result that working conditions would be so unpleasant or difficult that a reasonable per- son in the employee's shoes would resign.'" Gray v. York Newspapers, Inc., 957 F.2d 1070, 1079 (3d Cir. 1992)
(quoting Goss v. Exxon Office Systems Co., 747 F.2d 885,
887-88 (3d Cir. 1984)).
Because **6 this is an appeal from a judgment en- tered after trial, we must view the historical facts in the light most favorable to the judgment. See, e.g., Link v. Mercedes-Benz of North America, Inc., 788 F.2d 918,
921 (3d. Cir. 1986). HN2 Whether a reasonable em- ployee would resign when confronted with a particular
**8
decisions gave those factors the proper weight.
n2 See, e.g., Berger v. Edgewater Steel Co., 911
F.2d 911, 923 (3d Cir. 1990), cert. denied, 113 L. Ed. 2d 244, 111 S. Ct. 1310 (1991).
n3 See, e.g., Meyer v. Brown & Root Construction Co., 661 F.2d 369 (5th Cir. 1981); Muller v. U.S. Steel Corp., 509 F.2d 923 (10th Cir.), cert. denied, 423 U.S. 825, 46 L. Ed. 2d 41, 96 S. Ct. 39 (1975).
n4 See, e.g., Gray, 957 F.2d at 1082 (reporter removed from desirable beat; no constructive dis- charge); Goss, 747 F.2d at 888-89 (sales represen- tative removed from prior territory; constructive discharge).
n5 See, e.g., Junior v. Texaco, Inc., 688 F.2d
377, 380 (5th Cir. 1982).
set of circumstances is not, however, a pure question of historical fact, and the appropriate standard of review for such questions of reasonableness is subject to dispute. See United States v. McKines, 933 F.2d 1412, 1424-26 (8th Cir. 1991) (en banc); id. at 1419-22 (Beam, J., dissent- ing). We need not resolve this question in the present case. Even if subject to review only for clear error, the district court's holding that Clowes was constructively discharged connot be sustained.
We first note that Clowes cannot rely on many of the factors commonly cited by employees who claim to have been constructively discharged. Clowes was never threatened with discharge; nor did her employer ever urge or suggest that she resign or retire. Compare Spulak v. K-Mart Corp., 894 F.2d 1150, 1154 (10th Cir. 1990); Levendos v. Stern Entertainment, Inc., 860 F.2d 1227,
1228 (3d Cir. 1988) (reversing summary judgment for employer). Similarly, Clowes's employer did not demote her n1 or reduce her **7 pay or benefits. n2 Clowes was not involuntarily transferred to a less desirable posi- tion, n3 and her job responsibilities were not altered in any way. n4 She was not even given unsatisfactory job evaluations n5 but merely received ratings of "fair."
n1 See, e.g., Shealy v. Winston, 929 F.2d
1009 (4th Cir. 1991); Buckley v. Hospital Corp. of America, 758 F.2d 1525, 1530-31 (11th Cir. 1985). These cases and those cited in footnotes three and five are cited solely to illustrate some of the factors on which plaintiffs claiming constructive discharge have relied. We express no view as to whether these
It is also highly significant that Clowes, prior to leav- ing her position with the hospital, never requested to be transferred to another position, never advised the hospital that she would feel compelled to leave if changes regard- ing the manner in which she was being supervised were not made, and did not even attempt to file a grievance until long after she had stopped working at the hospi- tal. As other courts of appeals have noted, a reasonable employee will usually explore such alternative avenues thoroughly before coming to the conclusion that resigna- tion is the only option. n6 Boze v. Branstetter, 912 F.2d
801, 805 *1162 (5th Cir. 1990); Garner v. Wal-Mart Stores, Inc., 807 F.2d 1536, 1539 (11th Cir. 1987). **9 n7
n6 We do not require that such steps be taken in all cases. HN3 An employee may be able to show working conditions were so intolerable that a reasonable employee would feel forced to resign without remaining on the job for the period neces- sary to take those steps. In this case, however, the evidence is lacking in other respects and the plain- tiff's complaint focuses exclusively on the actions of one supervisor; accordingly, we find it signifi- cant that the plaintiff did not even request a transfer before deciding to resign.
n7 In a somewhat similar vein, HN4 some courts have held that an employee must generally pursue litigation before quitting and claiming con- structive discharge. See, e.g., Brooms v. Regal Tube Co., 881 F.2d 412, 423 (7th Cir. 1989); Bourque v.
991 F.2d 1159, *1162; 1993 U.S. App. LEXIS 9100, **9;
61 Fair Empl. Prac. Cas. (BNA) 908; 62 Empl. Prac. Dec. (CCH) P42,385
Page 4
Powell Elec. Mfg. Co., 617 F.2d 61, 65-66 (5th Cir.
1980).
Moreover, it is significant, in our view, that Clowes's complaints focused exclusively on Malloy's allegedly overzealous supervision **10 of her work. Clowes has not brought to our attention a single case in which a con- structive discharge has been found based solely upon such supervision. While do not hold that an employer's impo- sition of unreasonably exacting standards of job perfor- mance may never amount to a constructive discharge, we are convinced that a constructive discharge claim based solely on evidence of close supervision of job perfor- mance must be critically examined so that the ADEA is not improperly used as a means of thwarting an employer's nondiscriminatory efforts to insist on high standards.
In support of her claim of constructive discharge,
Clowes relies heavily on evidence regarding the impact that the events in question had on her. But as we have noted, " HN5 'the law does not permit an employee's subjective perceptions to govern a claim of constructive discharge.'" Gray, 957 F.2d at 1083 (quoting Bristow v. Daily Press, Inc., 770 F.2d 1251, 1255 (4th Cir. 1985)). We recognize that the jury, which heard testimony by both Clowes and Malloy, presumably concluded that Malloy treated Clowes unfairly and that her criticisms of Clowes were not entirely **11 warranted. We accept these apparent conclusions for purposes of this appeal, but it is clear that unfair and unwarranted treatment is by
no means the same as constructive discharge.
In sum, we hold that the evidence in this case was insufficient to show that Clowes was constructively dis- charged. The judgment of the district court is therefore reversed.
Contents
Prev
Next
Last
