Labor & Employment Law Daily Town employee who retired before a pre-termination hearing over ‘premeditated theft’ of can of biscuits and wire basket revives lawsuit
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Thursday, March 12, 2020

Town employee who retired before a pre-termination hearing over ‘premeditated theft’ of can of biscuits and wire basket revives lawsuit

By Marjorie Johnson, J.D.

The district court erred in finding that she could not prove a constructive discharge since nobody gave her the ultimatum to resign or be fired, or threatened her with criminal charges, and triable issues existed as to whether a reasonable person in her shoes would have felt compelled retire.

A 61-year-old police department employee who retired from her years-long position in the records department before her pre-termination hearing on charges of premeditated theft of a can of biscuits and a wire basket from the breakroom revived her ADEA and state law constructive-discharge claims. Reversing summary judgment against her, the Second Circuit ruled that the district court applied too stringent of a standard in ruling that she failed to show that she suffered an adverse employment action and impermissibly weighed the evidence against her. In particular, she claimed that she received advice that she should resign or retire if able by the internal-affairs investigator who had concluded she had engaged in a dischargeable offense and a union representative who had spoken with officials immediately before her hearing (Green v. Town of East Haven, March 10, 2020, Kearse, A.).

New supervisor, younger coworker. Since 2001, the employee worked in the records division of a town’s police department, alongside one other full-time coworker. In 2012, when she was 58 years old, she was placed under a new supervisor and alongside a new 30-year-old coworker who had replaced her recently retired peer.

Age-related unfair treatment. After these personnel changes, the employee was subjected to unfair treatment from both her supervisor and the police chief which she claimed was intended to cause her to retire. This included public criticisms of her work and harassing and demeaning demands and questioning. Meanwhile, her younger coworker was treated “with obvious favoritism.”

Theft of “biscuits” and “basket.” The underlying incident which led her to retire occurred on the morning of December 5, 2014, when she borrowed a wire basket from the breakroom area and took a canister of buttermilk biscuits that had been in the communal refrigerator for some time. An email was sent to staff asking that the missing biscuits be returned immediately, but when she went to return them the refrigerator was sealed with “crime scene” tape. She lied when the chief asked what was in her bag, but he looked inside anyway. After discovering the biscuits, he took her back to her desk and discovered the wire basket in her tote bag.

Told she’s likely to be fired. She was placed on leave and an internal affairs officer began an investigation. When he interviewed her on December 11, she explained that she was only borrowing the basket for a holiday party and planned to bake the biscuits and bring them back for staff. She also said that she did not ask permission since for the past 13 years, she and others had borrowed and returned such items without asking anyone. She also asked what was going to happen to her, and the officer purportedly responded that she had stolen from the department, that the chief and others no longer trusted her and didn’t want her to continue working there, that she would likely be fired, and that if there was a possibility of retiring she should do so.

The internal affairs officer subsequently issued a report concluding that the employee violated the code of conduct by engaging in premeditated theft and purposely concealing the biscuits and the basket, though he didn’t interview the owner of the biscuits or two persons she identified as having routinely borrowed baskets.

On the date of her pre-termination hearing before the board of police commissioners, the employee’s union representative met with town representatives, including the police chief. Afterwards, he told the employee she would “almost certainly” lose at the hearing. Based on his advice, and before the hearing commenced, she submitted a letter stating that she was retiring.

Overly stringent standard. In finding that the employee lacked proof that she suffered an adverse employment action, the district court emphasized that nobody gave her the ultimatum to resign or be fired, or threatened her with criminal charges. However, by so ruling, it imposed a legal standard at an “unwarranted level of specificity.” While considerations for the jury, neither an absolute statement nor a direct communication by an ultimate decisionmaker is “a sine qua non for evidence of a constructive discharge.” Rather, the established standard was whether, in light of the evidence as a whole, were working conditions so intolerable that a reasonable person in the employee’s shoes would have felt compelled to resign.

Impermissibly weighed the evidence. The district court also erred by balancing the facts and inferring that a reasonable person in the employee’s shoes would not have felt compelled to resign instead “elected on her own” to do so rather than to proceed with the Loudermill hearing.

Rather, applying the correct legal standard, a jury could rationally find that an employee in her shoes would have felt compelled to submit her resignation stating that she was retiring, rather than face nearly certain termination.

Was hearing a “viable” process? In particular, the district court’s finding that there was “no basis” for her to believe that she would lose in a hearing did not consider all of the evidence. Though the court characterized the hearing as a “viable” pre-termination process, it did not mention the internal affairs report’s findings that she had committed premeditated theft that she purposely concealed, or that authority to determine the merits of an IA investigation resided in the police chief. Moreover, she presented evidence that she received advice from knowledgeable persons, on both sides of the aisle, that the hearing would “likely” and “almost certainly” result in her termination.

Specifically, the internal affairs officer told her that if the charges were upheld, she would likely be fired in accordance with the consent-decree-mandated disciplinary matrix, and that if she could resign or retire, she “should do so.” And while he didn’t “specifically” recall the conversation, he testified that that “if she asked” he would have told her what he honestly thought, including that stealing fell was a dischargeable offense and the matrix left the BPC “very little” room for discretion.

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