Constructive discharge from the position as the result of unlawful acts of discrimination
2017 NY Slip Op 07609
In this action to recover damages for alleged unlawful discrimination in employment on the basis of age in violation of the Age Discrimination in Employment Act of 1967, the petitioner [Plaintiff] appealed an order of the Supreme Court which granted the defendants' [Employer] motion to dismiss the amended complaint.
In her amended complaint Plaintiff alleged that she had been subjected to two types of adverse employment actions: (1) she was given "unsatisfactory" ratings with respect to certain annual performance evaluations and (2) she was constructively discharged due to a hostile work environment.
With respect to the allegation that her having been given an adverse employee performance evaluation constituted an adverse employment action, the Appellate Division held that this branch of her complaint was untimely as the acts alleged to constitute an adverse employment action occurred more than 300 days before Plaintiff filed a complaint with the Equal Employment Opportunity Commission.
The court, however, then stated that it considered those annual performance evaluations in connection with Plaintiff's contention that she was constructively discharged due to a hostile work environment.
The court, however, then stated that it considered those annual performance evaluations in connection with Plaintiff's contention that she was constructively discharged due to a hostile work environment.
The Appellate Division said that the alleged adverse employment action must be extreme, amounting to a change in the terms and conditions of employment. Citing Alfano v Costello, 294 F3d 365, the court explained that the alleged misconduct shown "must be severe or pervasive enough to create an objectively hostile or abusive work environment and the victim must also subjectively perceive that environment to be abusive."
Further, as a general rule, incidents must be more than "episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive." In contrast, said the court, "Isolated acts, unless very serious, do not meet the threshold of severity or pervasiveness."
Further, as a general rule, incidents must be more than "episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive." In contrast, said the court, "Isolated acts, unless very serious, do not meet the threshold of severity or pervasiveness."
To illustrate this point, the court said "An employee is constructively discharged when [his or her] employer, rather than discharging [him or her] directly, intentionally creates a work atmosphere so intolerable that [he or she] is forced to quit involuntarily." In contrast, the decision notes that in general, "a disagreement with management over the quality of an employee's performance will not suffice to establish a constructive discharge."
The Appellate Division concluded that Plaintiff's amended complaint failed to state a cause of action alleging constructive discharge based on a hostile work environment as it failed to adequately allege that Plaintiff was subjected to "an adverse employment action" and thus failed to state a cause of action to recover damages for unlawful age discrimination under the ADEA.
Accordingly, the Appellate Division found that "Supreme Court properly granted the [Employer's] motion pursuant to CPLR 3211(a) to dismiss the amended complaint."
The decision is posted on the Internet at: