The 8th U.S. Circuit Court of Appeals has upheld summary judgment against a bank teller who claimed that she was constructively discharged when she left her job on the last day of her pregnancy-related medical leave. Trierweiler v. Wells Fargo bank, 8th Cir., No. 10-1343, April 8, 2011.
An individual can support a claim of constructive discharge by demonstrating that a reasonable person would have found the employment conditions intolerable, and that the employer either intended to force that person to quit, or could reasonable have foreseen that she would do so. Kimberli Trierweiler began working for Wells Fargo Bank in October 2006 as a teller in the bank’s Watertown, South Dakota branch. The handbook that Trierweiler received at the outset of her employment indicated a “regular and dependable attendance” was an essential function of her job, and that excessive absences from work would lead to discipline, up to and including termination. The handbook also provided methods for reporting employment issues, including concerns related to accommodations for medical issues.
Bank employees received 160 hours (20 days) of paid time off (PTO) each year, and could exercise that time off after 30 days of employment. Between her start date and the end of 2006, Trierwetler used her pro rata allotment of PTO, along with four and a half unpaid additional days of absence.
In December 2006, Trierweiler informed her supervisors that she was pregnant. Although she was not eligible for Family and Medical Leave (not having worked for the Bank for the requisite one year), she would have been entitled to maternity leave under a short-term disability plan, which had a 5-day “waiting period” during which Trierweiler would have had to use PTO days or unpaid leave.
By mid-April 2007, Trierweiler had used eleven and a half days of PTO, with three additional days scheduled before the end of April, amounting to 120 hours of her available 160 hours of PTO for 2007. None of that time was related to her pregnancy. During a meeting with her supervisor at that point, Trierweier was warned about her frequent absences.
On May 9, Trierweiler took another PTO day to stay home with a sick child. Following that, Trierweiler was told that if she had another absence, she would receive a written warning. On May 14, Trierweiler left a phone message for her supervisor, stating that her doctor had prescribed a week of pregnancy-related medical leave. According to Trierweiler, her supervisor responded with a message that said that “This isn’t going to work, you taking time off.” Trierweiler did not have any further direct contact with her supervisor or any HR person on the issue, but testified in her subsequent lawsuit that she felt that the message meant that she no longer had a job.
While Trierweiler was on her medical leave, her supervisor sought advice from HR. It was decided that Trierweiler should receive a written warning for her previous absences (not including the current leave), but that a company program, called “WorkAbility” would be explored for temporary accommodations for the current and any future pregnancy-related leaves. Two days later, on the final day of her week-long leave, Trierweiler drove through the bank’s drive-through lane, handed her keys to the teller, and stated that she was “done.” She followed this with a phone message to her supervisor that she had done so, and asked for her personal office items.
Trierweiler brought a federal court action under Title VII’s Pregnancy Discrimination Act, claiming that she had been constructively discharged. The lower court granted summary judgment in favor of the Bank, and that decision was upheld by the Eighth Circuit. In spite of Trierweiler’s argument that an alleged statement by her supervisor - that she couldn’t miss additional work without being fired – was designed to force her to quit, the Eighth Circuit pointed to the company’s decision to seek assistance from WorkAbility to explore possible accommodations for the situation. According to the Court, this showed an intent to maintain an employment relationship with Trierweiler, not an attempt to force her to quit, or to create an intolerable condition that would make it impossible for her to continue to work there.
Trierweiler never spoke with HR, utilized any resources provided in the handbook for problem resolution, or asked for clarification of any of the phone messages left for her about her absences. As such, Trierweiler failed to provide an opportunity for the company to remedy the issues of which she was complaining. The lesson here is that Court’s are hesitant to find constructive discharge when an employee does not allow the employer a reasonable chance to work out the problem. Further, the Bank’s efforts to find a resolution to the problem, and its documentation of that effort, helped to successfully defend against this claim.