Don’t believe it: Employee facing discipline can’t quit and then claim constructive discharge — Business Management Daily: Free Reports on Human Resources, Employment Law, Office Management, Office Communication, Office Technology and Small Business Tax Business Management Daily

Don’t believe it: Employee facing discipline can’t quit and then claim constructive discharge

Get PDF file

by on
in Discrimination and Harassment,Firing,Human Resources

Before they can successfully sue, employees generally must show that they were harmed by their employer’s alleged discrimination. Harm can include demotion, discharge or other adverse events.

Some employees quit and then argue that they had no choice but to do so. This is known as “constructive discharge.” Such a claim can succeed in court if the employee can show that working conditions became so intolerable that quitting was the only reasonable response.

But an employee can’t quit and claim constructive discharge just because he’s facing potential disciplinary action.

Recent case: Kenneth Swearnigen-El, a black man, worked as a correctional officer in the women’s wing of Cook County Jail. When he was accused of having sex with an inmate and faced internal disciplinary action, he quit.

Then he sued, alleging constructive discharge and race discrimination.

The court threw out Swearnigen-El’s case. It said he didn’t have enough justification for quitting pending the criminal case and internal disciplinary process.

Merely facing the possibility that one might be fired isn’t enough justification to quit.

Otherwise, everyone facing serious disciplinary action would be able to quit and sue before the employer had a chance to collect all the information it needed to make a careful and considered decision.

That would provide a perverse incentive for employees to quit before being fired. (Swearnigen-El v. Cook County Sheriff’s Department, No. 09-2709, 7th Cir., 2010)

{ 1 comment… read it below or add one }

Kenneth Swearnigen May 22, 2015 at 12:46 pm

Dispite the courts decision not to proceed in my case. It doesnt negate the fact it was the right position to take. After in the face attacks by Administrators and Investigators. It was best for me to approach this matter outside of the political system within the Department. While being a union representive as well as a veteran officer. I knew the operation pretty well and I knew the sheriff department was very political and could make circumstances very hard for an African American male, who they just need out of the way for personal reason. The law has many loop hole for those who control it. My reasoning for resigning had everything to do with fighting to gain my innocence and my name. What the courts wont tell you is the whole case was never seen as a criminal case. A internal disciplinary case at most. You bring a officer into a criminal case with no evidence and the witness . States someone told her to implicate you for a get out of jail free card. If the person is convicted .. Really!
A smart man , told me one day run if in danger. So you can live to fight another day. The sheriff department was to big to fight while I was attached financially. If it came down to it , would I do anything different . No! I advise all agents in law enforcement to keep an Attorney on retainer.

Reply

Leave a Comment