Wednesday, October 21, 2015

Constructive discharge, retaliation, and sexual harassment.

Practice point:  The Appellate Division reversed the motion court, and reinstated plaintiff's retaliation claim, with leave to litigate both that cause of action and her claim for sexual harassment under a theory of constructive discharge.

After plaintiff allegedly was sexually assaulted, defendant suspended the offending supervisor, conducted an investigation, found that the offending supervisor had engaged in "inappropriate conduct," and disciplined the supervisor by giving him what, in effect, was a final warning. Defendant then informed plaintiff that the supervisor would be returning to work with plaintiff. When plaintiff asked that she be separated from the supervisor, defendant offered only to transfer her from the evening shift to an early morning shift, which would entail a pay cut and a functional demotion, because there would be no acting supervisor positions available.

Student note:  The Appellate Division determined that plaintiff raised issues of fact as to whether defendant constructively discharged her by deliberately creating working conditions that were so intolerable that a reasonable person would have felt compelled to resign. Plaintiff also raised triable issues of fact as to her retaliation cause of action, since the record shows that she formally complained about the sexual harassment and was constructively discharged within a short time thereafter, permitting an inference of a causal connection between her complaint and the constructive discharge.

Case:  Teran v. JetBlue Airways Corp., NY Slip 07546 (1st Dept. 2015)

Here is the decision.

Tomorrow's issue:  A motion to set aside a jury verdict.