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Some employees have heard through the legal grapevine that if the going gets tough at work, they can just get going. They believe they can up and quit—and then turn around and sue, claiming that they had no choice but to leave because they were suffering retaliation for taking some protected action.

This is an example of “constructive discharge,” a legal argument that sometimes works in employees’ favor. But conditions have to be pretty onerous before the tactic works. Usually, a successful constructive discharge claim is based on absolutely intolerable conditions, such as ongoing sexual harassment that management refuses to address.

Recent case: Lynn Foshee worked for Ascension Health and took FMLA leave for unspecified psychological problems. While on FMLA leave, she saw a job listing for what she thought was her position. Then her supervisor refused to meet with her to discuss her return.

Instead of coming back to work or pursuing accommodations, Foshee quit. Then she sued, alleging she had no choice but to quit since Ascension Health was retaliating against her for taking FMLA leave.

She argued that she had reason to believe she was being fired and that was as good as actually being fired.

The court nixed her skewed logic. It said that nothing about her situation was intolerable, and that employees should not see a plot behind every move. Instead, employees owe their employers an obligation not to assume the worst. (Foshee v. Ascension Health, No. 09-16499, 11th Cir., 2010)

Final note: If an employee really is on thin ice, take time to get the firing right. Don’t be in a hurry out of fear the employee will quit and sue anyway. Instead, carefully document the process and build a solid case for discharge.

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